{"database": "openregs", "table": "cfr_sections", "is_view": false, "human_description_en": "where part_number = 655 and title_number = 20 sorted by section_id", "rows": [["20:20:3.0.2.1.27.0.23.1", 20, "Employees' Benefits", "V", "", "655", "PART 655\u2014TEMPORARY EMPLOYMENT OF FOREIGN WORKERS IN THE UNITED STATES", "", "", "", "\u00a7 655.0 Scope and purpose of part.", "DOL", "", "", "[43 FR 10312, Mar. 10, 1978, as amended at 52 FR 20507, June 1, 1987; 55 FR 50510, Dec. 6, 1990; 56 FR 24667, May 30, 1991; 56 FR 54738, Oct. 22, 1991; 56 FR 56875, Nov. 6, 1991; 57 FR 1337, Jan. 13, 1992; 57 FR 40989, Sept. 8, 1992; 69 FR 68226, Nov. 23, 2004; 73 FR 19947, Apr. 11, 2008]", "(a)  Subparts A, B, and C \u2014(1)  General.  Subparts A, B, and C of this part set out the procedures adopted by the Secretary to secure information sufficient to make factual determinations of: (i) Whether U.S. workers are available to perform temporary employment in the United States, for which an employer desires to employ nonimmigrant foreign workers, and (ii) whether the employment of aliens for such temporary work will adversely affect the wages or working conditions of similarly employed U.S. workers. These factual determinations (or a determination that there are not sufficient facts to make one or both of these determinations) are required to carry out the policies of the Immigration and Nationality Act (INA), that a nonimmigrant alien worker not be admitted to fill a particular temporary job opportunity unless no qualifed U.S. worker is available to fill the job opportunity, and unless the employment of the foreign worker in the job opportunity will not adversely affect the wages or working conditions of similarly employed U.S. workers.\n\n(2)  The Secretary's determinations.  Before any factual determination can be made concerning the availability of U.S. workers to perform particular job opportunities, two steps must be taken. First, the minimum level of wages, terms, benefits, and conditions for the particular job opportunities, below which similarly employed U.S. workers would be adversely affected, must be established. (The regulations in this part establish such minimum levels for wages, terms, benefits, and conditions of employment.) Second, the wages, terms, benefits, and conditions offered and afforded to the aliens must be compared to the established minimum levels. If it is concluded that adverse effect would result, the ultimate determination of availability within the meaning of the INA cannot be made since U.S. workers cannot be expected to accept employment under conditions below the established minimum levels.  Florida Sugar Cane League, Inc.  v.  Usery,  531 F. 2d 299 (5th Cir. 1976).\n\nOnce a determination of no adverse effect has been made, the availability of U.S. workers can be tested only if U.S. workers are actively recruited through the offer of wages, terms, benefits, and conditions at least at the minimum level or the level offered to the aliens, whichever is higher. The regulations in this part set forth requirements for recruiting U.S. workers in accordance with this principle.\n\n(3)  Construction.  This part and its subparts shall be construed to effectuate the purpose of the INA that U.S. workers rather than aliens be employed wherever possible.  Elton Orchards, Inc.  v.  Brennan,  508 F. 2d 493, 500 (1st Cir. 1974),  Flecha  v.  Quiros,  567 F. 2d 1154 (1st Cir. 1977). Where temporary alien workers are admitted, the terms and conditions of their employment must not result in a lowering of the terms and conditions of domestic workers similarly employed,  Williams  v.  Usery,  531 F. 2d 305 (5th Cir. 1976);  Florida Sugar Cane League, Inc.  v.  Usery,  531 F. 2d 299 (5th Cir. 1976), and the job benefits extended to any U.S. workers shall be at least those extended to the alien workers.\n\n(b)  Subparts D and E.  Subparts D and E of this part set forth the process by which health care facilities can file attestations with the Department of Labor for the purpose of employing or otherwise using nonimmigrant registered nurses under H-1A visas.\n\n(c)  Subparts F and G.  Subparts F and G of this part set forth the process by which employers can file attestations with the Department of Labor for the purpose of employing alien crewmembers in longshore work under D-visas and enforcement provisions relating thereto.\n\n(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: (1) H-1B visas for temporary employment in specialty occupations or as fashion models of distinguished merit and ability; (2) 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 (3) E-3 visas for nationals of the Commonwealth of Australia for temporary employment in specialty occupations. Subpart I of this part establishes the enforcement provisions that apply to the H-1B, H-1B1, and E-3 visa programs.\n\n(e)  Subparts J and K of this part.  Subparts J and K of this part set forth the process by which employers can file attestations with the Department of Labor for the purpose of employing nonimmigrant alien students on F-visas in off-campus employment and enforcement provisions relating thereto."], ["20:20:3.0.2.1.27.0.23.2", 20, "Employees' Benefits", "V", "", "655", "PART 655\u2014TEMPORARY EMPLOYMENT OF FOREIGN WORKERS IN THE UNITED STATES", "", "", "", "\u00a7 655.00 Authority of the Office of Foreign Labor Certification (OFLC) Administrator under subparts A, B, and C.", "DOL", "", "", "[71 FR 35518, June 21, 2006]", "Pursuant to the regulations under this part, temporary labor certification determinations under subparts A, B, and C of this part are ordinarily made by the Office of Foreign Labor Certification (OFLC) Administrator (OFLC Administrator) of the Employment and Training Administration. The OFLC Administrator will informally advise the employer or agent of the name of the official who will make determinations with respect to the application."], ["20:20:3.0.2.1.27.1.23.1", 20, "Employees' Benefits", "V", "", "655", "PART 655\u2014TEMPORARY EMPLOYMENT OF FOREIGN WORKERS IN THE UNITED STATES", "A", "Subpart A\u2014Labor Certification Process for Temporary Non-Agricultural Employment in the United States (H-2B Workers)", "", "\u00a7 655.1 Scope and purpose of this subpart.", "DOL", "", "", "", "Section 214(c)(1) of the Immigration and Nationality Act (INA), 8 U.S.C. 1184(c)(1), requires the Secretary of Homeland Security to consult with appropriate agencies before authorizing the classification of aliens as H-2B workers. Department of Homeland Security (DHS) regulations at 8 CFR 214.2(h)(6)(iii)(D) designate the Secretary of Labor as an appropriate authority with whom DHS consults regarding the H-2B program, and specifies that the Secretary of Labor, in carrying out this consultative function, shall issue regulations regarding the issuance of temporary labor certifications. DHS regulations at 8 CFR 214.2(h)(6)(iv) further provide that an employer's petition to employ H-2B nonimmigrant workers for temporary non-agricultural employment in the United States (U.S.), except for Guam, must be accompanied by an approved temporary labor certification from the Secretary of Labor (Secretary).\n\n(a)  Purpose.  The temporary labor certification reflects a determination by the Secretary that:\n\n(1) There are not sufficient U.S. workers who are qualified and who will be available to perform the temporary services or labor for which an employer desires to hire foreign workers, and that\n\n(2) The employment of the H-2B worker(s) will not adversely affect the wages and working conditions of U.S. workers similarly employed.\n\n(b)  Scope.  This subpart sets forth the procedures governing the labor certification process for the temporary employment of nonimmigrant foreign workers in the H-2B nonimmigrant classification, as defined in 8 U.S.C. 1101(a)(15)(H)(ii)(b), section 101(a)(15)(H)(ii)(b) of the INA. It also establishes obligations with respect to the terms and conditions of the temporary labor certification with which H-2B employers must comply, as well as their obligations to H-2B workers and workers in corresponding employment. Additionally, this subpart sets forth integrity measures for ensuring employers' continued compliance with the terms and conditions of the temporary labor certification."], ["20:20:3.0.2.1.27.1.23.10", 20, "Employees' Benefits", "V", "", "655", "PART 655\u2014TEMPORARY EMPLOYMENT OF FOREIGN WORKERS IN THE UNITED STATES", "A", "Subpart A\u2014Labor Certification Process for Temporary Non-Agricultural Employment in the United States (H-2B Workers)", "", "\u00a7 655.10 Determination of prevailing wage for temporary labor certification purposes.", "DOL", "", "", "[80 FR 24108, Apr. 29, 2015, as amended at 80 FR 24184, Apr. 29, 2015]", "(a)  Offered wage.  The employer must advertise the position to all potential workers at a wage at least equal to the prevailing wage obtained from the NPWC, or the Federal, State or local minimum wage, whichever is highest. The employer must offer and pay this wage (or higher) to both its H-2B workers and its workers in corresponding employment. The issuance of a PWD under this section does not permit an employer to pay a wage lower than the highest wage required by any applicable Federal, State or local law.\n\n(b)  Determinations.  Prevailing wages shall be determined as follows:\n\n(1) Except as provided in paragraph (i) of this section, if the job opportunity is covered by a collective bargaining agreement (CBA) that was negotiated at arms' length between the union and the employer, the wage rate set forth in the CBA is considered as not adversely affecting the wages of U.S. workers, that is, it is considered the \u201cprevailing wage\u201d for labor certification purposes.\n\n(2) If the job opportunity is not covered by a CBA, the prevailing wage for labor certification purposes shall be the arithmetic mean of the wages of workers similarly employed in the area of intended employment using the wage component of the BLS Occupational Employment Statistics Survey (OES), unless the employer provides a survey acceptable to OFLC under paragraph (f) of this section.\n\n(c)  Request for PWD.  (1) An employer must request and receive a PWD from the NPWC before filing the job order with the SWA.\n\n(2) The PWD must be valid on the date the job order is posted.\n\n(d)  Multiple worksites.  If the job opportunity involves multiple worksites within an area of intended employment and different prevailing wage rates exist for the opportunity within the area of intended employment, the prevailing wage is the highest applicable wage among all the worksites.\n\n(e)  NPWC action.  The NPWC will provide the PWD, indicate the source, and return the Application for Prevailing Wage Determination (ETA Form 9141) with its endorsement to the employer.\n\n(f)  Employer-provided survey.  (1) If the job opportunity is not covered by a CBA, or by a professional sports league's rules or regulations, the NPWC will consider a survey provided by the employer in making a Prevailing Wage Determination only if the employer submission demonstrates that the survey falls into one of the following categories:\n\n(i) The survey was independently conducted and issued by a state, including any state agency, state college, or state university;\n\n(ii) The survey is submitted for a geographic area where the OES does not collect data, or in a geographic area where the OES provides an arithmetic mean only at a national level for workers employed in the SOC;\n\n(iii)(A) The job opportunity is not included within an occupational classification of the SOC system; or\n\n(B) The job opportunity is within an occupational classification of the SOC system designated as an \u201call other\u201d classification.\n\n(2) The survey must provide the arithmetic mean of the wages of all workers similarly employed in the area of intended employment, except that if the survey provides a median but does not provide an arithmetic mean, the prevailing wage applicable to the employer's job opportunity shall be the median of the wages of workers similarly employed in the area of intended employment.\n\n(3) Notwithstanding paragraph (f)(2) of this section, the geographic area surveyed may be expanded beyond the area of intended employment, but only as necessary to meet the requirements of paragraph (f)(4)(ii) of this section. Any geographic expansion beyond the area of intended employment must include only those geographic areas that are contiguous to the area of intended employment.\n\n(4) In each case where the employer submits a survey under paragraph (f)(1) of this section, the employer must submit, concurrently with the ETA Form 9141, a completed Form ETA-9165 containing specific information about the survey methodology, including such items as sample size and source, sample selection procedures, and survey job descriptions, to allow a determination of the adequacy of the data provided and validity of the statistical methodology used in conducting the survey. In addition, the information provided by the employer must include the attestation that:\n\n(i) The surveyor either made a reasonable, good faith attempt to contact all employers employing workers in the occupation and geographic area surveyed or conducted a randomized sampling of such employers;\n\n(ii) The survey includes wage data from at least 30 workers and three employers;\n\n(iii) If the survey is submitted under paragraph (f)(1)(ii) or (iii) of this section, the collection was administered by a bona fide third party. The following are not bona fide third parties under this rule: Any H-2B employer or any H-2B employer's agent, representative, or attorney;\n\n(iv) The survey was conducted across industries that employ workers in the occupation; and\n\n(v) The wage reported in the survey includes all types of pay, consistent with Form ETA-9165.\n\n(5) The survey must be based upon recently collected data: The survey must be the most current edition of the survey and must be based on wages paid not more than 24 months before the date the survey is submitted for consideration.\n\n(g)  Review of employer-provided surveys.  (1) If the NPWC finds an employer-provided survey not to be acceptable, the NPWC shall inform the employer in writing of the reasons the survey was not accepted.\n\n(2) The employer, after receiving notification that the survey it provided for consideration is not acceptable, may request review under \u00a7 655.13.\n\n(h)  Validity period.  The NPWC must specify the validity period of the prevailing wage, which in no event may be more than 365 days and no less than 90 days from the date that the determination is issued.\n\n(i)  Professional athletes.  In computing the prevailing wage for a professional athlete when the job opportunity is covered by professional sports league rules or regulations, the wage set forth in those rules or regulations is considered the prevailing wage.\n\n(j)  Retention of documentation.  The employer must retain the PWD for 3 years from the date of issuance or the date of a final determination on the  Application for Temporary Employment Certification,  whichever is later, and submit it to a CO if requested by a Notice of Deficiency, described in \u00a7 655.31, or audit, as described in \u00a7 655.70, or to a WHD representative during a WHD investigation.\n\n(k)  Guam.  The requirements of this section apply to any request filed for an H-2B job opportunity on Guam, subject to the transfer of authority to set the prevailing wage for a job opportunity on Guam to DOL in Title 8 of the Code of Federal Regulations."], ["20:20:3.0.2.1.27.1.23.11", 20, "Employees' Benefits", "V", "", "655", "PART 655\u2014TEMPORARY EMPLOYMENT OF FOREIGN WORKERS IN THE UNITED STATES", "A", "Subpart A\u2014Labor Certification Process for Temporary Non-Agricultural Employment in the United States (H-2B Workers)", "", "\u00a7 655.11 Registration of H-2B employers.", "DOL", "", "", "", "All employers, including job contractors, that desire to hire H-2B workers must establish their need for services or labor is temporary by filing an  H-2B Registration  with the Chicago NPC.\n\n(a)  Registration filing.  An employer must file an  H-2B Registration.  The  H-2B Registration  must be accompanied by documentation evidencing:\n\n(1) The number of positions that will be sought in the first year of registration;\n\n(2) The time period of need for the workers requested;\n\n(3) That the nature of the employer's need for the services or labor to be performed is non-agricultural and temporary, and is justified as either a one-time occurrence, a seasonal need, a peakload need, or an intermittent need, as defined by DHS regulations and \u00a7 655.6 (or in the case of job contractors, a seasonal need or one-time occurrence); and\n\n(4) For job contractors, the job contractor's own seasonal need or one-time occurrence, such as through the provision of payroll records.\n\n(b)  Original signature.  The  H-2B Registration  must bear the original signature of the employer (and that of the employer's attorney or agent if applicable). If and when the  H-2B Registration  is permitted to be filed electronically, the employer will satisfy this requirement by signing the  H-2B Registration  as directed by the CO.\n\n(c)  Timeliness of registration filing.  A completed request for an  H-2B Registration  must be received by no less than 120 calendar days and no more than 150 calendar days before the employer's date of need, except where the employer submits the  H-2B Registration  in support of an emergency filing under \u00a7 655.17.\n\n(d)  Temporary need.  (1) The employer must establish that its need for non-agricultural services or labor is temporary, regardless of whether the underlying job is permanent or temporary, consistent with DHS regulations. A job contractor must also demonstrate through documentation its own seasonal need or one-time occurrence.\n\n(2) The employer's need will be assessed in accordance with the definitions provided by the Secretary of Homeland Security and as further defined in \u00a7 655.6.\n\n(e)  NPC review.  The CO will review the  H-2B Registration  and its accompanying documentation for completeness and make a determination based on the following factors:\n\n(1) The job classification and duties qualify as non-agricultural;\n\n(2) The employer's need for the services or labor to be performed is temporary in nature, and for job contractors, demonstration of the job contractor's own seasonal need or one-time occurrence;\n\n(3) The number of worker positions and period of need are justified; and\n\n(4) The request represents a bona fide job opportunity.\n\n(f)  Mailing and postmark requirements.  Any notice or request pertaining to an  H-2B Registration  sent by the CO to an employer requiring a response will be mailed to the address provided on the  H-2B Registration  using methods to assure next day delivery, including electronic mail. The employer's response to the notice or request must be mailed using methods to assure next day delivery, including electronic mail, and be sent by the due date specified by the CO or by the next business day if the due date falls on a Saturday, Sunday or Federal holiday.\n\n(g)  Request for information (RFI).  If the CO determines the  H-2B Registration  cannot be approved, the CO will issue an RFI. The RFI will be issued within 7 business days of the CO's receipt of the  H-2B Registration.  The RFI will:\n\n(1) State the reason(s) why the  H-2B Registration  cannot be approved and what supplemental information or documentation is needed to correct the deficiencies;\n\n(2) Specify a date, no later than 7 business days from the date the RFI is issued, by which the supplemental information or documentation must be sent by the employer;\n\n(3) State that, upon receipt of a response to the RFI, the CO will review the  H-2B Registration  as well as any supplemental information and documentation and issue a Notice of Decision on the  H-2B Registration.  The CO may, at his or her discretion, issue one or more additional RFIs before issuing a Notice of Decision on the  H-2B Registration;  and\n\n(4) State that failure to comply with an RFI, including not responding in a timely manner or not providing all required documentation within the specified timeframe, will result in a denial of the  H-2B Registration.\n\n(h)  Notice of Decision.  The CO will notify the employer in writing of the final decision on the  H-2B Registration.\n\n(1) Approved  H-2B Registration.  If the  H-2B Registration  is approved, the CO will send a Notice of Decision to the employer, and a copy to the employer's attorney or agent, if applicable. The Notice of Decision will notify the employer that it is eligible to seek H-2B workers in the occupational classification for the anticipated number of positions and period of need stated on the approved  H-2B Registration.  The CO may approve the  H-2B Registration  for a period of up to 3 consecutive years.\n\n(2) Denied  H-2B Registration.  If the  H-2B Registration  is denied, the CO will send a Notice of Decision to the employer, and a copy to the employer's attorney or agent, if applicable. The Notice of Decision will:\n\n(i) State the reason(s) why the  H-2B Registration  is denied;\n\n(ii) Offer the employer an opportunity to request administrative review under \u00a7 655.61 within 10 business days from the date the Notice of Decision is issued and state that if the employer does not request administrative review within that period the denial is final.\n\n(i)  Retention of documents.  All employers filing an  H-2B Registration  are required to retain any documents and records not otherwise submitted proving compliance with this subpart. Such records and documents must be retained for a period of 3 years from the date of certification of the last  Application for Temporary Employment Certification  supported by the  H-2B Registration,  if approved, or 3 years from the date the decision is issued if the  H-2B Registration  is denied or 3 years from the day the Department of Labor receives written notification from the employer withdrawing its pending  H-2B Registration.\n\n(j)  Transition period.  In order to allow OFLC to make the necessary changes to its program operations to accommodate the new registration process, OFLC will announce in the  Federal Register  a separate transition period for the registration process, and until that time, will continue to adjudicate temporary need during the processing of applications."], ["20:20:3.0.2.1.27.1.23.12", 20, "Employees' Benefits", "V", "", "655", "PART 655\u2014TEMPORARY EMPLOYMENT OF FOREIGN WORKERS IN THE UNITED STATES", "A", "Subpart A\u2014Labor Certification Process for Temporary Non-Agricultural Employment in the United States (H-2B Workers)", "", "\u00a7 655.12 Use of registration of H-2B employers.", "DOL", "", "", "", "(a) Upon approval of the  H-2B Registration,  the employer is authorized for the specified period of up to 3 consecutive years from the date the  H-2B Registration  is approved to file an  Application for Temporary Employment Certification,  unless:\n\n(1) The number of workers to be employed has increased by more than 20 percent (or 50 percent for employers requesting fewer than 10 workers) from the initial year;\n\n(2) The dates of need for the job opportunity have changed by more than a total of 30 calendar days from the initial year for the entire period of need;\n\n(3) The nature of the job classification and/or duties has materially changed; or\n\n(4) The temporary nature of the employer's need for services or labor to be performed has materially changed.\n\n(b) If any of the changes in paragraphs (a)(1) through (4) of this section apply, the employer must file a new  H-2B Registration  in accordance with \u00a7 655.11.\n\n(c) The  H-2B Registration  may not be transferred from one employer to another unless the employer to which it is transferred is a successor in interest to the employer to which it was issued."], ["20:20:3.0.2.1.27.1.23.13", 20, "Employees' Benefits", "V", "", "655", "PART 655\u2014TEMPORARY EMPLOYMENT OF FOREIGN WORKERS IN THE UNITED STATES", "A", "Subpart A\u2014Labor Certification Process for Temporary Non-Agricultural Employment in the United States (H-2B Workers)", "", "\u00a7 655.13 Review of PWDs.", "DOL", "", "", "", "(a)  Request for review of PWDs.  Any employer desiring review of a PWD must make a written request for such review to the NPWC Director within 7 business days from the date the PWD is issued. The request for review must clearly identify the PWD for which review is sought; set forth the particular grounds for the request; and include any materials submitted to the NPWC for purposes of securing the PWD.\n\n(b)  NPWC review.  Upon the receipt of the written request for review, the NPWC Director will review the employer's request and accompanying documentation, including any supplementary material submitted by the employer, and after review shall issue a Final Determination letter; that letter may:\n\n(1) Affirm the PWD issued by the NPWC; or\n\n(2) Modify the PWD.\n\n(c)  Request for review by BALCA.  Any employer desiring review of the NPWC Director's decision on a PWD must make a written request for review of the determination by BALCA within 10 business days from the date the Final Determination letter is issued.\n\n(1) The request for BALCA review must be in writing and addressed to the NPWC Director who made the final determinations. Upon receipt of a request for BALCA review, the NPWC will prepare an appeal file and submit it to BALCA.\n\n(2) The request for review, statements, briefs, and other submissions of the parties must contain only legal arguments and may refer to only the evidence that was within the record upon which the decision on the PWD was based.\n\n(3) BALCA will handle appeals in accordance with \u00a7 655.61."], ["20:20:3.0.2.1.27.1.23.14", 20, "Employees' Benefits", "V", "", "655", "PART 655\u2014TEMPORARY EMPLOYMENT OF FOREIGN WORKERS IN THE UNITED STATES", "A", "Subpart A\u2014Labor Certification Process for Temporary Non-Agricultural Employment in the United States (H-2B Workers)", "", "\u00a7 655.14 [Reserved]", "DOL", "", "", "", ""], ["20:20:3.0.2.1.27.1.23.2", 20, "Employees' Benefits", "V", "", "655", "PART 655\u2014TEMPORARY EMPLOYMENT OF FOREIGN WORKERS IN THE UNITED STATES", "A", "Subpart A\u2014Labor Certification Process for Temporary Non-Agricultural Employment in the United States (H-2B Workers)", "", "\u00a7 655.2 Authority of the agencies, offices, and divisions in the Department of Labor.", "DOL", "", "", "", "(a)  Authority and role of the Office of Foreign Labor Certification (OFLC).  The Secretary has delegated authority to make determinations under this subpart, pursuant to 8 CFR 214.2(h)(6)(iii)(D) and (h)(6)(iv), to the Assistant Secretary for the Employment and Training Administration (ETA), who in turn has delegated that authority to OFLC. Determinations on an  Application for Temporary Employment Certification  in the H-2B program are made by the Administrator, OFLC who, in turn, may delegate this responsibility to designated staff members, e.g., a Certifying Officer (CO).\n\n(b)  Authority of the Wage and Hour Division (WHD).  Pursuant to its authority under section 214(c)(14)(B) of the INA, 8 U.S.C. 1184(c)(l4)(B), DHS has delegated to the Secretary certain investigatory and enforcement functions with respect to terms and conditions of employment in the H-2B program. The Secretary has, in turn, delegated that authority to WHD. The regulations governing WHD investigation and enforcement functions, including those related to the enforcement of temporary labor certifications, issued under this subpart, may be found in 29 CFR part 503.\n\n(c)  Concurrent authority.  OFLC and WHD have concurrent authority to impose a debarment remedy under \u00a7 655.73 or under 29 CFR 503.24."], ["20:20:3.0.2.1.27.1.23.3", 20, "Employees' Benefits", "V", "", "655", "PART 655\u2014TEMPORARY EMPLOYMENT OF FOREIGN WORKERS IN THE UNITED STATES", "A", "Subpart A\u2014Labor Certification Process for Temporary Non-Agricultural Employment in the United States (H-2B Workers)", "", "\u00a7 655.3 Territory of Guam.", "DOL", "", "", "", "This subpart does not apply to temporary employment in the Territory of Guam, except that an employer who applies for a temporary labor certification for a job opportunity on Guam will need to obtain a prevailing wage from the U.S. Department of Labor (DOL) in accordance with \u00a7 655.10, subject to the transfer of authority to set the prevailing wage for a job opportunity on Guam to DOL in title 8 of the Code of Federal Regulations. DOL does not certify to DHS the temporary employment of H-2B nonimmigrant foreign workers, or enforce compliance with the provisions of the H-2B visa program, in the Territory of Guam."], ["20:20:3.0.2.1.27.1.23.4", 20, "Employees' Benefits", "V", "", "655", "PART 655\u2014TEMPORARY EMPLOYMENT OF FOREIGN WORKERS IN THE UNITED STATES", "A", "Subpart A\u2014Labor Certification Process for Temporary Non-Agricultural Employment in the United States (H-2B Workers)", "", "\u00a7 655.4 Transition procedures.", "DOL", "", "", "", "(a) The NPWC shall continue to process an  Application for Prevailing Wage Determination  submitted prior to April 29, 2015, in accordance with the prevailing wage methodology at 20 CFR part 655, subpart A, revised as of April 1, 2009, except for \u00a7 655.10(b)(2), see 20 CFR part 655, subpart A, revised as of April 1, 2014. Employers with a pending  Application for Prevailing Wage Determination  who seek a prevailing wage based on an alternate wage source must submit a new  Application for Prevailing Wage Determination.\n\n(b) The NPWC shall process an  Application for a Prevailing Wage Determination  submitted on or after April 29, 2015, in accordance with the wage methodology established in \u00a7 655.10 of the final prevailing wage rule.\n\n(c) The NPC shall continue to process an  Application for Temporary Employment Certification  submitted prior to April 29, 2015, in accordance with 20 CFR part 655, subpart A, revised as of April 1, 2009.\n\n(d) The NPC shall process an  Application for Temporary Employment Certification  submitted on or after April 29, 2015, and that has a start date of need prior to October 1, 2015, as follows:\n\n(1) Employers will be permitted to file an  Application for Temporary Employment Certification  job order with the NPC using the emergency situations provision at \u00a7 655.17. The  Application for Temporary Employment Certification  must include a signed and dated copy of the new Appendix B associated with the ETA Form 9142B containing the requisite program assurances and obligations under this rule. In the case of a job contractor filing as a joint employer with its employer-client, the NPC must receive a separate attachment containing the employer-client's business and contact information ( i.e.,  sections C and D of the ETA Form 9142B) as well as a separate signed and dated copy of the Appendix B for its employer-client, as required by \u00a7 655.19.\n\n(2) The NPC will waive the regulatory filing timeframe under \u00a7 655.15 and process the  Application for Temporary Employment Certification  and job order in a manner consistent with the handling of applications under \u00a7 655.17 for emergency situations, including the recruitment of U.S. workers on an expedited basis, and make a determination as required by \u00a7 655.50. The recruitment of U.S. workers on an expedited basis will consist of placing a new job order with the SWA serving the area of intended employment that contains the job assurances and contents set forth in \u00a7 655.18 for a period of not less than 10 calendar days. In addition, employers who have not placed any newspaper advertisements under the rule published at 20 CFR part 655, subpart A, revised as of April 1, 2009. must place one newspaper advertisement, which may be published on any day of the week, meeting the advertising requirements of \u00a7 655.41, during the period of time the SWA is actively circulating the job order for intrastate clearance.\n\n(3) If the Chicago NPC grants a temporary labor certification, the employer will receive an original certified ETA Form 9142B and a Final Determination letter. Upon receipt of the original certified ETA Form 9142B, the employer or its agent or attorney, if applicable, must complete the footer on the original Appendix B of the  Application for Temporary Employment Certification,  retain the original Appendix B, and submit a signed copy of Appendix B, together with the original certified ETA Form 9142B directly to USCIS. Under the document retention requirements in \u00a7 655.56, the employer must retain a copy of the temporary labor certification and the original signed Appendix B.\n\n(4) An employer who did not submit an  Application for a Prevailing Wage Determination  prior to April 29, 2015, but who has a start date of need prior to October 1, 2015 may submit a completed  Application for a Prevailing Wage Determination  to the NPC with its emergency  Application for Temporary Employment Certification  requesting a prevailing wage determination for the job opportunity. Upon receipt, the NPC will transmit, on behalf of the employer, a copy of the  Application for a Prevailing Wage Determination  to the NPWC for processing and issuance of a prevailing wage determination using the wage methodology established in \u00a7 655.10.\n\n(e) The NPC shall process an  Application for Temporary Employment Certification  submitted on or after April 29, 2015, and that has a start date of need after October 1, 2015, in accordance with all application filing requirements under this rule, and the employer must obtain a valid prevailing wage determination under the wage methodology established in \u00a7 655.10 prior to filing the job order with the SWA under \u00a7 655.16.\n\n(f) Employers with a prevailing wage determination issued by the NPWC, or who have a pending or granted  Application for Temporary Employment Certification  on April 29, 2015, may seek a supplemental prevailing wage determination (SPWD) in order to obtain a prevailing wage based on an alternate wage source under this rule.\n\n(1) The SPWD will apply during the validity period of the certification, except that such SPWD will be applicable only to those H-2B workers who are not yet employed in the certified position on the date of the issuance of the SPWD. The SPWD will not be applicable to H-2B workers who are already employed in the certified position at the time of the issuance of the SPWD, and it will not apply to U.S. workers recruited and hired under the original job order. For seafood employers whose workers' entry into the U.S. may be staggered under \u00a7 655.15(f), an SPWD issued under this provision will apply only to those H-2B workers who have not yet entered the U.S. and are therefore not yet employed in the certified position at the time of the issuance of the SPWD.\n\n(2) In order to receive an SPWD under this provision, the employer must submit a new ETA Form 9141 to the NPWC that contains in Section E.a.5 Job Duties the original PWD tracking number (starting with P-400), the H-2B temporary employment certification application number (starting with H-400), and the words \u201cRequest for a Supplemental Prevailing Wage Determination.\u201d Electronic submission through the iCERT Visa Portal System is preferred. Upon receipt of the request, the NPWC will issue to the employer, or if applicable, the employer's attorney or agent, an SPWD in an expedited manner and provide a copy to the Chicago NPC."], ["20:20:3.0.2.1.27.1.23.5", 20, "Employees' Benefits", "V", "", "655", "PART 655\u2014TEMPORARY EMPLOYMENT OF FOREIGN WORKERS IN THE UNITED STATES", "A", "Subpart A\u2014Labor Certification Process for Temporary Non-Agricultural Employment in the United States (H-2B Workers)", "", "\u00a7 655.5 Definition of terms.", "DOL", "", "", "", "For purposes of this subpart:\n\nAct  means the Immigration and Nationality Act or INA, as amended, 8 U.S.C. 1101  et seq.\n\nAdministrative Law Judge (ALJ)  means a person within the Department's Office of Administrative Law Judges appointed under 5 U.S.C. 3105.\n\nAdministrator, Office of Foreign Labor Certification (OFLC)  means the primary official of the Office of Foreign Labor Certification, ETA, or the Administrator's designee.\n\nAdministrator, Wage and Hour Division (WHD)  means the primary official of the WHD, or the Administrator's designee.\n\nAgent  means:\n\n(1) A legal entity or person who:\n\n(i) Is authorized to act on behalf of an employer for temporary nonagricultural labor certification purposes;\n\n(ii) Is not itself an employer, or a joint employer, as defined in this part with respect to a specific application; and\n\n(iii) Is not an association or other organization of employers.\n\n(2) No agent who is under suspension, debarment, expulsion, disbarment, or otherwise restricted from practice before any court, the Department of Labor, the Executive Office for Immigration Review under 8 CFR 1003.101, or DHS under 8 CFR 292.3 may represent an employer under this part.\n\nAgricultural labor or services  means those duties and occupations defined in subpart B of this part.\n\nApplicant  means a U.S. worker who is applying for a job opportunity for which an employer has filed an  Application for Temporary Employment Certification  (ETA Form 9142B and the appropriate appendices).\n\nApplication for Temporary Employment Certification  means the Office of Management and Budget (OMB)-approved ETA Form 9142B and the appropriate appendices, a valid wage determination, as required by \u00a7 655.10, and a subsequently-filed U.S. worker recruitment report, submitted by an employer to secure a temporary labor certification determination from DOL.\n\nArea of intended employment  means the geographic area within normal commuting distance of the place (worksite address) of the job opportunity for which the certification is sought. There is no rigid measure of distance that constitutes a normal commuting distance or normal commuting area, because there may be widely varying factual circumstances among different areas (e.g., average commuting times, barriers to reaching the worksite, or quality of the regional transportation network). If the place of intended employment is within a Metropolitan Statistical Area (MSA), including a multistate MSA, any place within the MSA is deemed to be within normal commuting distance of the place of intended employment. The borders of MSAs are not controlling in the identification of the normal commuting area; a location outside of an MSA may be within normal commuting distance of a location that is inside (e.g., near the border of) the MSA.\n\nArea of substantial unemployment  means a contiguous area with a population of at least 10,000 in which there is an average unemployment rate equal to or exceeding 6.5 percent for the 12 months preceding the determination of such areas made by the ETA.\n\nAttorney  means any person who is a member in good standing of the bar of the highest court of any State, possession, territory, or commonwealth of the U.S., or the District of Columbia. No attorney who is under suspension, debarment, expulsion, disbarment, or otherwise restricted from practice before any court, the Department of Labor, the Executive Office for Immigration Review under 8 CFR 1003.101, or DHS under 8 CFR 292.3 may represent an employer under this subpart.\n\nBoard of Alien Labor Certification Appeals (BALCA or Board)  means the permanent Board established by part 656 of this chapter, chaired by the Chief Administrative Law Judge (Chief ALJ), and consisting of ALJs assigned to the Department of Labor and designated by the Chief ALJ to be members of BALCA.\n\nCertifying Officer (CO)  means an OFLC official designated by the Administrator, OFLC to make determinations on applications under the H-2B program. The Administrator, OFLC is the National CO. Other COs may also be designated by the Administrator, OFLC to make the determinations required under this subpart.\n\nChief Administrative Law Judge (Chief ALJ)  means the chief official of the Department's Office of Administrative Law Judges or the Chief Administrative Law Judge's designee.\n\nCorresponding employment  means:\n\n(1) The employment of workers who are not H-2B workers by an employer that has a certified H-2B  Application for Temporary Employment Certification  when those workers are performing either substantially the same work included in the job order or substantially the same work performed by the H-2B workers, except that workers in the following two categories are not included in corresponding employment:\n\n(i) Incumbent employees continuously employed by the H-2B employer to perform substantially the same work included in the job order or substantially the same work performed by the H-2B workers during the 52 weeks prior to the period of employment certified on the  Application for Temporary Employment Certification  and who have worked or been paid for at least 35 hours in at least 48 of the prior 52 workweeks, and who have worked or been paid for an average of at least 35 hours per week over the prior 52 weeks, as demonstrated on the employer's payroll records, provided that the terms and working conditions of their employment are not substantially reduced during the period of employment covered by the job order. In determining whether this standard was met, the employer may take credit for any hours that were reduced by the employee voluntarily choosing not to work due to personal reasons such as illness or vacation; or\n\n(ii) Incumbent employees covered by a collective bargaining agreement or an individual employment contract that guarantees both an offer of at least 35 hours of work each workweek and continued employment with the H-2B employer at least through the period of employment covered by the job order, except that the employee may be dismissed for cause.\n\n(2) To qualify as corresponding employment, the work must be performed during the period of the job order, including any approved extension thereof.\n\nDate of need  means the first date the employer requires services of the H-2B workers as listed on the  Application for Temporary Employment Certification.\n\nDepartment of Homeland Security (DHS)  means the Federal Department having jurisdiction over certain immigration-related functions, acting through its component agencies, including USCIS.\n\nEmployee  means a person who is engaged to perform work for an employer, as defined under the general common law. Some of the factors relevant to the determination of employee status include: The hiring party's right to control the manner and means by which the work is accomplished; the skill required to perform the work; the source of the instrumentalities and tools for accomplishing the work; the location of the work; the hiring party's discretion over when and how long to work; and whether the work is part of the regular business of the hiring party. Other applicable factors may be considered and no one factor is dispositive. The terms employee and worker are used interchangeably in this subpart.\n\nEmployer  means a person (including any individual, partnership, association, corporation, cooperative, firm, joint stock company, trust, or other organization with legal rights and duties) that:\n\n(1) Has a place of business (physical location) in the U.S. and a means by which it may be contacted for employment;\n\n(2) Has an employer relationship (such as the ability to hire, pay, fire, supervise or otherwise control the work of employees) with respect to an H-2B worker or a worker in corresponding employment; and\n\n(3) Possesses, for purposes of filing an  Application for Temporary Employment Certification,  a valid Federal Employer Identification Number (FEIN).\n\nEmployer-client  means an employer that has entered into an agreement with a job contractor and that is not an affiliate, branch or subsidiary of the job contractor, under which the job contractor provides services or labor to the employer on a temporary basis and will not exercise substantial, direct day-to-day supervision and control in the performance of the services or labor to be performed other than hiring, paying and firing the workers.\n\nEmployment and Training Administration (ETA)  means the agency within the Department of Labor that includes OFLC and has been delegated authority by the Secretary to fulfill the Secretary's mandate under the DHS regulations for the administration and adjudication of an  Application for Temporary Employment Certification  and related functions.\n\nFederal holiday  means a legal public holiday as defined at 5 U.S.C. 6103.\n\nFull-time  means 35 or more hours of work per week.\n\nH-2B Petition  means the DHS Form I-129  Petition for a Nonimmigrant Worker,  with H Supplement or successor form or supplement, and accompanying documentation required by DHS for employers seeking to employ foreign persons as H-2B nonimmigrant workers\n\nH-2B Registration  means the OMB-approved ETA Form 9155, submitted by an employer to register its intent to hire H-2B workers and to file an  Application for Temporary Employment Certification.\n\nH-2B worker  means any temporary foreign worker who is lawfully present in the U.S. and authorized by DHS to perform nonagricultural labor or services of a temporary or seasonal nature under 8 U.S.C. 1101(a)(15)(H)(ii)(b), INA section 101(a)(15)(H)(ii)(b).\n\nJob contractor  means a person, association, firm, or a corporation that meets the definition of an employer and that contracts services or labor on a temporary basis to one or more employers, which is not an affiliate, branch or subsidiary of the job contractor and where the job contractor will not exercise substantial, direct day-to-day supervision and control in the performance of the services or labor to be performed other than hiring, paying and firing the workers.\n\nJob offer  means the offer made by an employer or potential employer of H-2B workers to both U.S. and H-2B workers describing all the material terms and conditions of employment, including those relating to wages, working conditions, and other benefits.\n\nJob opportunity  means one or more openings for full-time employment with the petitioning employer within a specified area(s) of intended employment for which the petitioning employer is seeking workers.\n\nJob order  means the document containing the material terms and conditions of employment relating to wages, hours, working conditions, worksite and other benefits, including obligations and assurances under 29 CFR part 503 and this subpart that is posted between and among the State Workforce Agencies (SWAs) on their job clearance systems.\n\nJoint employment  means that where two or more employers each have sufficient definitional indicia of being an employer to be considered the employer of a worker, those employers will be considered to jointly employ that worker. Each employer in a joint employment relationship to a worker is considered a joint employer of that worker.\n\nLayoff  means any involuntary separation of one or more U.S. employees without cause.\n\nMetropolitan Statistical Area (MSA)  means a geographic entity defined by OMB for use by Federal statistical agencies in collecting, tabulating, and publishing Federal statistics. A metro area contains a core urban area of 50,000 or more population, and a micro area contains an urban core of at least 10,000 (but fewer than 50,000) population. Each metro or micro area consists of one or more counties and includes the counties containing the core urban area, as well as any adjacent counties that have a high degree of social and economic integration (as measured by commuting to work) with the urban core.\n\nNational Prevailing Wage Center (NPWC)  means that office within OFLC from which employers, agents, or attorneys who wish to file an  Application for Temporary Employment Certification  receive a prevailing wage determination (PWD).\n\nNPWC Director  means the OFLC official to whom the Administrator, OFLC has delegated authority to carry out certain NPWC operations and functions.\n\nNational Processing Center (NPC)  means the office within OFLC which is charged with the adjudication of an  Application for Temporary Employment Certification  or other applications. For purposes of this subpart, the NPC receiving a request for an  H-2B Registration  and an  Application for Temporary Employment Certification  is the Chicago NPC whose address is published in the  Federal Register .\n\nNPC Director  means the OFLC official to whom the Administrator, OFLC has delegated authority for purposes of certain Chicago NPC operations and functions.\n\nNon-agricultural labor and services  means any labor or services not considered to be agricultural labor or services as defined in subpart B of this part. It does not include the provision of services as members of the medical profession by graduates of medical schools.\n\nOccupational employment statistics (OES) survey  means the program under the jurisdiction of the Bureau of Labor Statistics (BLS) that provides annual wage estimates for occupations at the State and MSA levels.\n\nOffered wage  means the wage offered by an employer in an H-2B job order. The offered wage must equal or exceed the highest of the prevailing wage or Federal, State or local minimum wage.\n\nOffice of Foreign Labor Certification (OFLC)  means the organizational component of the ETA that provides national leadership and policy guidance and develops regulations to carry out the Secretary's responsibilities, including determinations related to an employer's request for  H-2B Regis tration,  Application for Prevailing Wage Determination,  or  Application for Temporary Employment Certification.\n\nPrevailing wage determination (PWD)  means the prevailing wage for the position, as described in \u00a7 655.10, that is the subject of the  Application for Temporary Employment Certification.  The PWD is made on ETA Form 9141,  Application for Prevailing Wage Determination.\n\nProfessional athlete  means an individual who is employed as an athlete by:\n\n(1) A team that is a member of an association of six or more professional sports teams whose total combined revenues exceed $10,000,000 per year, if the association governs the conduct of its members and regulates the contests and exhibitions in which its member teams regularly engage; or\n\n(2) Any minor league team that is affiliated with such an association.\n\nSeafood  is defined as fresh or saltwater finfish, crustaceans, other forms of aquatic animal life, including, but not limited to, alligator, frog, aquatic turtle, jellyfish, sea cucumber, and sea urchin and the roe of such animals, and all mollusks.\n\nSecretary  means the Secretary of Labor, the chief official of the U.S. Department of Labor, or the Secretary's designee.\n\nSecretary of Homeland Security  means the chief official of the U.S. Department of Homeland Security (DHS) or the Secretary of Homeland Security's designee.\n\nSecretary of State  means the chief official of the U.S. Department of State or the Secretary of State's designee.\n\nState Workforce Agency (SWA)  means a State government agency that receives funds under the Wagner-Peyser Act (29 U.S.C. 49  et seq. ) to administer the State's public labor exchange activities.\n\nStrike  means a concerted stoppage of work by employees as a result of a labor dispute, or any concerted slowdown or other concerted interruption of operation (including stoppage by reason of the expiration of a collective bargaining agreement).\n\nSuccessor in interest  means:\n\n(1) Where an employer has violated 29 CFR part 503, or this subpart, and has ceased doing business or cannot be located for purposes of enforcement, a successor in interest to that employer may be held liable for the duties and obligations of the violating employer in certain circumstances. The following factors, as used under Title VII of the Civil Rights Act and the Vietnam Era Veterans' Readjustment Assistance Act, may be considered in determining whether an employer is a successor in interest; no one factor is dispositive, but all of the circumstances will be considered as a whole:\n\n(i) Substantial continuity of the same business operations;\n\n(ii) Use of the same facilities;\n\n(iii) Continuity of the work force;\n\n(iv) Similarity of jobs and working conditions;\n\n(v) Similarity of supervisory personnel;\n\n(vi) Whether the former management or owner retains a direct or indirect interest in the new enterprise;\n\n(vii) Similarity in machinery, equipment, and production methods;\n\n(viii) Similarity of products and services; and\n\n(ix) The ability of the predecessor to provide relief.\n\n(2) For purposes of debarment only, the primary consideration will be the personal involvement of the firm's ownership, management, supervisors, and others associated with the firm in the violation(s) at issue.\n\nUnited States (U.S.)  means the continental United States, Alaska, Hawaii, the Commonwealth of Puerto Rico, Guam, the U.S. Virgin Islands, and the Commonwealth of the Northern Mariana Islands (CNMI).\n\nU.S. Citizenship and Immigration Services (USCIS)  means the Federal agency within DHS that makes the determination under the INA whether to grant petitions filed by employers seeking H-2B workers to perform temporary non-agricultural work in the U.S.\n\nUnited States worker (U.S. worker)  means a worker who is:\n\n(1) A citizen or national of the U.S.;\n\n(2) An alien who is lawfully admitted for permanent residence in the U.S., is admitted as a refugee under 8 U.S.C. 1157, section 207 of the INA, is granted asylum under 8 U.S.C. 1158, section 208 of the INA, or is an alien otherwise authorized under the immigration laws to be employed in the U.S.; or\n\n(3) An individual who is not an unauthorized alien (as defined in 8 U.S.C. 1324a(h)(3), section 274a(h)(3) of the INA) with respect to the employment in which the worker is engaging.\n\nWage and Hour Division (WHD)  means the agency within the Department of Labor with investigatory and law enforcement authority, as delegated from DHS, to carry out the provisions under 8 U.S.C. 1184(c), section 214(c) of the INA.\n\nWages  mean all forms of cash remuneration to a worker by an employer in payment for personal services."], ["20:20:3.0.2.1.27.1.23.6", 20, "Employees' Benefits", "V", "", "655", "PART 655\u2014TEMPORARY EMPLOYMENT OF FOREIGN WORKERS IN THE UNITED STATES", "A", "Subpart A\u2014Labor Certification Process for Temporary Non-Agricultural Employment in the United States (H-2B Workers)", "", "\u00a7 655.6 Temporary need.", "DOL", "", "", "", "(a) An employer seeking certification under this subpart must establish that its need for non-agricultural services or labor is temporary, regardless of whether the underlying job is permanent or temporary.\n\n(b) The employer's need is considered temporary if justified to the CO as one of the following: A one-time occurrence; a seasonal need; a peakload need; or an intermittent need, as defined by DHS regulations. Except where the employer's need is based on a one-time occurrence, the CO will deny a request for an  H-2B Registration  or an  Application for Temporary Employment Certification  where the employer has a need lasting more than 9 months.\n\n(c) A job contractor will only be permitted to seek certification if it can demonstrate through documentation its own temporary need, not that of its employer-client(s). A job contractor will only be permitted to file applications based on a seasonal need or a one-time occurrence.\n\n(d) Nothing in this paragraph (d) is intended to limit the authority of the Secretary of Homeland Security, in the course of adjudicating an H-2B petition, to make the final determination as to whether a prospective H-2B employer's need is temporary in nature."], ["20:20:3.0.2.1.27.1.23.7", 20, "Employees' Benefits", "V", "", "655", "PART 655\u2014TEMPORARY EMPLOYMENT OF FOREIGN WORKERS IN THE UNITED STATES", "A", "Subpart A\u2014Labor Certification Process for Temporary Non-Agricultural Employment in the United States (H-2B Workers)", "", "\u00a7 655.7 Persons and entities authorized to file.", "DOL", "", "", "", "(a)  Persons authorized to file.  In addition to the employer applicant, a request for an  H-2B Registration  or an  Application for Temporary Employment Certification  may be filed by an attorney or agent, as defined in \u00a7 655.5.\n\n(b)  Employer's signature required.  Regardless of whether the employer is represented by an attorney or agent, the employer is required to sign the  H-2B Registration  and  Application for Temporary Employment Certification  and all documentation submitted to the Department of Labor."], ["20:20:3.0.2.1.27.1.23.8", 20, "Employees' Benefits", "V", "", "655", "PART 655\u2014TEMPORARY EMPLOYMENT OF FOREIGN WORKERS IN THE UNITED STATES", "A", "Subpart A\u2014Labor Certification Process for Temporary Non-Agricultural Employment in the United States (H-2B Workers)", "", "\u00a7 655.8 Requirements for agents.", "DOL", "", "", "", "An agent filing an  Application for Temporary Employment Certification  on behalf of an employer must provide:\n\n(a) A copy of the agent agreement or other document demonstrating the agent's authority to represent the employer; and\n\n(b) A copy of the Migrant and Seasonal Agricultural Worker Protection Act (MSPA) Farm Labor Contractor Certificate of Registration, if the agent is required under MSPA, at 29 U.S.C. 1801  et seq.,  to have such a certificate, identifying the specific farm labor contracting activities the agent is authorized to perform."], ["20:20:3.0.2.1.27.1.23.9", 20, "Employees' Benefits", "V", "", "655", "PART 655\u2014TEMPORARY EMPLOYMENT OF FOREIGN WORKERS IN THE UNITED STATES", "A", "Subpart A\u2014Labor Certification Process for Temporary Non-Agricultural Employment in the United States (H-2B Workers)", "", "\u00a7 655.9 Disclosure of foreign worker recruitment.", "DOL", "", "", "", "(a) The employer, and its attorney or agent, as applicable, must provide a copy of all agreements with any agent or recruiter whom it engages or plans to engage in the recruitment of H-2B workers under this  Application for Temporary Employment Certification.  These agreements must contain the contractual prohibition against charging fees as set forth in \u00a7 655.20(p).\n\n(b) The employer, and its attorney or agent, as applicable, must also provide the identity and location of all persons and entities hired by or working for the recruiter or agent referenced in paragraph (a) of this section, and any of the agents or employees of those persons and entities, to recruit prospective foreign workers for the H-2B job opportunities offered by the employer.\n\n(c) The Department of Labor will maintain a publicly available list of agents and recruiters who are party to the agreements referenced in paragraph (a) of this section, as well as the persons and entities referenced in paragraph (b) of this section and the locations in which they are operating."], ["20:20:3.0.2.1.27.1.24.15", 20, "Employees' Benefits", "V", "", "655", "PART 655\u2014TEMPORARY EMPLOYMENT OF FOREIGN WORKERS IN THE UNITED STATES", "A", "Subpart A\u2014Labor Certification Process for Temporary Non-Agricultural Employment in the United States (H-2B Workers)", "", "\u00a7 655.15 Application filing requirements.", "DOL", "", "", "", "All registered employers that desire to hire H-2B workers must file an  Application for Temporary Employment Certification  with the NPC designated by the Administrator, OFLC. Except for employers that qualify for emergency procedures at \u00a7 655.17, employers that fail to register under the procedures in \u00a7 655.11 and/or that fail to submit a PWD obtained under \u00a7 655.10 will not be eligible to file an  Application for Temporary Employment Certification  and their applications will be returned without review.\n\n(a)  What to file.  A registered employer seeking H-2B workers must file a completed  Application for Temporary Employment Certification  (ETA Form 9142B and the appropriate appendices and valid PWD), a copy of the job order being submitted concurrently to the SWA serving the area of intended employment, as set forth in \u00a7 655.16, and copies of all contracts and agreements with any agent and/or recruiter, executed in connection with the job opportunities and all information required, as specified in \u00a7\u00a7 655.8 and 655.9.\n\n(b)  Timeliness.  A completed  Application for Temporary Employment Certification  must be filed no more than 90 calendar days and no less than 75 calendar days before the employer's date of need.\n\n(c)  Location and method of filing.  The employer must submit the  Application for Temporary Employment Certification  and all required supporting documentation to the NPC either electronically or by mail.\n\n(d)  Original signature.  The  Application for Temporary Employment Certification  must bear the original signature of the employer (and that of the employer's authorized attorney or agent if the employer is so represented). If the  Application for Temporary Employment Certification  is filed electronically, the employer must satisfy this requirement by signing the  Application for Temporary Employment Certification  as directed by the CO.\n\n(e)  Requests for multiple positions.  Certification of more than one position may be requested on the  Application for Temporary Employment Certification  as long as all H-2B workers will perform the same services or labor under the same terms and conditions, in the same occupation, in the same area of intended employment, and during the same period of employment.\n\n(f)  Separate applications.  Except as otherwise permitted by this paragraph (f), only one  Application for Temporary Employment Certification  may be filed for worksite(s) within one area of intended employment for each job opportunity with an employer for each period of employment. Except where otherwise permitted under \u00a7 655.4, an association or other organization of employers is not permitted to file master applications on behalf of its employer-members under the H-2B program.\n\n(1) Subject to paragraph (f)(2) of this section, if a petition for H-2B nonimmigrants filed by an employer in the seafood industry is granted, the employer may bring the nonimmigrants described in the petition into the United States at any time during the 120-day period beginning on the start date for which the employer is seeking the services of the nonimmigrants without filing another petition.\n\n(2) An employer in the seafood industry may not bring H-2B nonimmigrants into the United States after the date that is 90 days after the start date for which the employer is seeking the services of the nonimmigrants unless the employer conducts new recruitment, that begins at least 45 days after, and ends before the 90th day after, the certified start date of need as follows:\n\n(i) Completes a new assessment of the local labor market by\u2014\n\n(A) Listing the job orders in local newspapers on 2 separate Sundays; and\n\n(B) Placing new job orders for the job opportunity with the State Workforce Agency serving the area of intended employment and posting the job opportunity at the place of employment for at least 10 days; and\n\n(C) Offering the job to an equally or better qualified United States worker who\u2014\n\n( 1 ) Applies for the job; and\n\n( 2 ) Will be available at the time and place of need.\n\n(3) In order to comply with this provision, employers in the seafood industry must\u2014\n\n( 1 ) Sign and date an attestation form stating the employer's compliance with this subparagraph. The attestation form is available at  http://www.foreignlaborcert.doleta.gov/form.cfm;\n\n( 2 ) Provide each H-2B nonimmigrant worker seeking admission to the United States a copy of the signed and dated attestation, with instructions that the worker must present the documentation upon request to the Department of State's consular officers when they apply for a visa and/or the Department of Homeland Security's U.S Customs and Border Protection officers when seeking admission to the United States. Without this attestation, an H-2B nonimmigrant may be denied a visa or admission to the United States if seeking to enter at any time other than the start date stated in the petition. (The attestation is not necessary when filing an amended petition based on a worker who is being substituted in accordance with DHS regulations.) The attestation presented by an H-2B nonimmigrant worker must be the official attestation downloaded from OFLC's Web site and may not be altered or revised in any manner; and\n\n( 3 ) Retain the additional recruitment documentation, together with their prefiling recruitment documentation, for a period of 3 years from the date of certification, consistent with the document retention requirements under \u00a7 655.56. Seafood industry employers who conduct the required additional recruitment should not submit proof of the additional recruitment to the Office of Foreign Labor Certification.\n\n(g)  One-time occurrence.  Where a one-time occurrence lasts longer than 1 year, the CO will instruct the employer on any additional recruitment requirements with respect to the continuing validity of the labor market test or offered wage obligation.\n\n(h)  Information dissemination.  Information received in the course of processing a request for an  H-2B Registration,  an  Application for Temporary Employment Certification  or program integrity measures such as audits may be forwarded from OFLC to WHD, or any other Federal agency as appropriate, for investigative and/or enforcement purposes."], ["20:20:3.0.2.1.27.1.24.16", 20, "Employees' Benefits", "V", "", "655", "PART 655\u2014TEMPORARY EMPLOYMENT OF FOREIGN WORKERS IN THE UNITED STATES", "A", "Subpart A\u2014Labor Certification Process for Temporary Non-Agricultural Employment in the United States (H-2B Workers)", "", "\u00a7 655.16 Filing of the job order at the SWA.", "DOL", "", "", "", "(a)  Submission of the job order.  (1) The employer must submit the job order to the SWA serving the area of intended employment at the same time it submits the  Application for Temporary Employment Certification  and a copy of the job order to the NPC in accordance with \u00a7 655.15. If the job opportunity is located in more than one State within the same area of intended employment, the employer may submit the job order to any one of the SWAs having jurisdiction over the anticipated worksites, but must identify the receiving SWA on the copy of the job order submitted to the NPC with its  Application for Temporary Employment Certification.  The employer must inform the SWA that the job order is being placed in connection with a concurrently submitted  Application for Temporary Employment Certification  for H-2B workers.\n\n(2) In addition to complying with State-specific requirements governing job orders, the job order submitted to the SWA must satisfy the requirements set forth in \u00a7 655.18.\n\n(b)  SWA review of the job order.  The SWA must review the job order and ensure that it complies with criteria set forth in \u00a7 655.18. If the SWA determines that the job order does not comply with the applicable criteria, the SWA must inform the CO at the NPC of the noted deficiencies within 6 business days of receipt of the job order.\n\n(c)  Intrastate and interstate clearance.  Upon receipt of the Notice of Acceptance, as described in \u00a7 655.33, the SWA must promptly place the job order in intrastate clearance, and in interstate clearance by providing a copy of the job order to other states as directed by the CO.\n\n(d)  Duration of job order posting and SWA referral of U.S. workers.  Upon receipt of the Notice of Acceptance, any SWA in receipt of the employer's job order must keep the job order on its active file until the end of the recruitment period, as set forth in \u00a7 655.40(c), and must refer to the employer in a manner consistent with \u00a7 655.47 all qualified U.S. workers who apply for the job opportunity or on whose behalf a job application is made.\n\n(e)  Amendments to a job order.  The employer may amend the job order at any time before the CO makes a final determination, in accordance with procedures set forth in \u00a7 655.35."], ["20:20:3.0.2.1.27.1.24.17", 20, "Employees' Benefits", "V", "", "655", "PART 655\u2014TEMPORARY EMPLOYMENT OF FOREIGN WORKERS IN THE UNITED STATES", "A", "Subpart A\u2014Labor Certification Process for Temporary Non-Agricultural Employment in the United States (H-2B Workers)", "", "\u00a7 655.17 Emergency situations.", "DOL", "", "", "", "(a)  Waiver of time period.  The CO may waive the time period(s) for filing an  H-2B Registration  and/or an  Application for Temporary Employment Certification  for employers that have good and substantial cause, provided that the CO has sufficient time to thoroughly test the domestic labor market on an expedited basis and to make a final determination as required by \u00a7 655.50.\n\n(b)  Employer requirements.  The employer requesting a waiver of the required time period(s) must submit to the NPC a request for a waiver of the time period requirement, a completed  Application for Temporary Employment Certification  and the proposed job order identifying the SWA serving the area of intended employment, and must otherwise meet the requirements of \u00a7 655.15. If the employer did not previously apply for an  H-2B Registration,  the employer must also submit a completed  H-2B Registration  with all supporting documentation, as required by \u00a7 655.11. If the employer did not previously apply for a PWD, the employer must also submit a completed PWD request. The employer's waiver request must include detailed information describing the good and substantial cause that has necessitated the waiver request. Good and substantial cause may include, but is not limited to, the substantial loss of U.S. workers due to Acts of God, or a similar unforeseeable man-made catastrophic event (such as an oil spill or controlled flooding) that is wholly outside of the employer's control, unforeseeable changes in market conditions, or pandemic health issues. A denial of a previously submitted  H-2B Registration  in accordance with the procedures set forth in \u00a7 655.11 does not constitute good and substantial cause necessitating a waiver under this section.\n\n(c)  Processing of emergency applications.  The CO will process the emergency  H-2B Registration  and/or  Application for Temporary Employment Certification  and job order in a manner consistent with the provisions of this subpart and make a determination on the  Application for Temporary Employment Certification  in accordance with \u00a7 655.50. If the CO grants the waiver request, the CO will forward a Notice of Acceptance and the approved job order to the SWA serving the area of intended employment identified by the employer in the job order. If the CO determines that the certification cannot be granted because, under paragraph (a) of this section, the request for emergency filing is not justified and/or there is not sufficient time to make a determination of temporary need or ensure compliance with the criteria for certification contained in \u00a7 655.51, the CO will send a Final Determination letter to the employer in accordance with \u00a7 655.53."], ["20:20:3.0.2.1.27.1.24.18", 20, "Employees' Benefits", "V", "", "655", "PART 655\u2014TEMPORARY EMPLOYMENT OF FOREIGN WORKERS IN THE UNITED STATES", "A", "Subpart A\u2014Labor Certification Process for Temporary Non-Agricultural Employment in the United States (H-2B Workers)", "", "\u00a7 655.18 Job order assurances and contents.", "DOL", "", "", "", "(a)  General.  Each job order placed in connection with an  Application for Temporary Employment Certification  must at a minimum include the information contained in paragraph (b) of this section. In addition, by submitting the  Application for Temporary Employment Certification,  an employer agrees to comply with the following assurances with respect to each job order:\n\n(1)  Prohibition against preferential treatment.  The employer's job order must offer to U.S. workers no less than the same benefits, wages, and working conditions that the employer is offering, intends to offer, or will provide to H-2B workers. Job offers may not impose on U.S. workers any restrictions or obligations that will not be imposed on the employer's H-2B workers. This does not relieve the employer from providing to H-2B workers at least the minimum benefits, wages, and working conditions which must be offered to U.S. workers consistent with this section.\n\n(2)  Bona fide job requirements.  Each job qualification and requirement must be listed in the job order and must be bona fide and consistent with the normal and accepted qualifications and requirements imposed by non-H-2B employers in the same occupation and area of intended employment.\n\n(b)  Contents.  In addition to complying with the assurances in paragraph (a) of this section, the employer's job order must meet the following requirements:\n\n(1) State the employer's name and contact information;\n\n(2) Indicate that the job opportunity is a temporary, full-time position, including the total number of job openings the employer intends to fill;\n\n(3) Describe the job opportunity for which certification is sought with sufficient information to apprise U.S. workers of the services or labor to be performed, including the duties, the minimum education and experience requirements, the work hours and days, and the anticipated start and end dates of the job opportunity;\n\n(4) Indicate the geographic area of intended employment with enough specificity to apprise applicants of any travel requirements and where applicants will likely have to reside to perform the services or labor;\n\n(5) Specify the wage that the employer is offering, intends to offer, or will provide to H-2B workers, or, in the event that there are multiple wage offers, the range of wage offers, and ensure that the wage offer equals or exceeds the highest of the prevailing wage or the Federal, State, or local minimum wage;\n\n(6) If applicable, specify that overtime will be available to the worker and the wage offer(s) for working any overtime hours;\n\n(7) If applicable, state that on-the-job training will be provided to the worker;\n\n(8) State that the employer will use a single workweek as its standard for computing wages due;\n\n(9) Specify the frequency with which the worker will be paid, which must be at least every 2 weeks or according to the prevailing practice in the area of intended employment, whichever is more frequent;\n\n(10) If the employer provides the worker with the option of board, lodging, or other facilities, including fringe benefits, or intends to assist workers to secure such lodging, disclose the provision and cost of the board, lodging, or other facilities, including fringe benefits or assistance to be provided;\n\n(11) State that the employer will make all deductions from the worker's paycheck required by law. Specify any deductions the employer intends to make from the worker's paycheck which are not required by law, including, if applicable, any deductions for the reasonable cost of board, lodging, or other facilities;\n\n(12) Detail how the worker will be provided with or reimbursed for transportation and subsistence from the place from which the worker has come to work for the employer, whether in the U.S. or abroad, to the place of employment, if the worker completes 50 percent of the period of employment covered by the job order, consistent with \u00a7 655.20(j)(1)(i);\n\n(13) State that the employer will provide or pay for the worker's cost of return transportation and daily subsistence from the place of employment to the place from which the worker, disregarding intervening employment, departed to work for the employer, if the worker completes the certified period of employment or is dismissed from employment for any reason by the employer before the end of the period, consistent with \u00a7 655.20(j)(1)(ii);\n\n(14) If applicable, state that the employer will provide daily transportation to and from the worksite;\n\n(15) State that the employer will reimburse the H-2B worker in the first workweek for all visa, visa processing, border crossing, and other related fees, including those mandated by the government, incurred by the H-2B worker (but need not include passport expenses or other charges primarily for the benefit of the worker);\n\n(16) State that the employer will provide to the worker, without charge or deposit charge, all tools, supplies, and equipment required to perform the duties assigned, in accordance with \u00a7 655.20(k);\n\n(17) State the applicability of the three-fourths guarantee, offering the worker employment for a total number of work hours equal to at least three-fourths of the workdays of each 12-week period, if the period of employment covered by the job order is 120 or more days, or each 6-week period, if the period of employment covered by the job order is less than 120 days, in accordance with \u00a7 655.20(f); and\n\n(18) Instruct applicants to inquire about the job opportunity or send applications, indications of availability, and/or resumes directly to the nearest office of the SWA in the State in which the advertisement appeared and include the SWA contact information."], ["20:20:3.0.2.1.27.1.24.19", 20, "Employees' Benefits", "V", "", "655", "PART 655\u2014TEMPORARY EMPLOYMENT OF FOREIGN WORKERS IN THE UNITED STATES", "A", "Subpart A\u2014Labor Certification Process for Temporary Non-Agricultural Employment in the United States (H-2B Workers)", "", "\u00a7 655.19 Job contractor filing requirements.", "DOL", "", "", "[42 FR 45899, Sept. 13, 1977, as amended at 84 FR 62446, Nov. 15, 2019]", "(a) Provided that a job contractor and any employer-client are joint employers, a job contractor may submit an  Application for Temporary Employment Certification  on behalf of itself and that employer-client.\n\n(b) A job contractor must have separate contracts with each different employer-client. Each contract or agreement may support only one  Application for Temporary Employment Certification  for each employer-client job opportunity within a single area of intended employment.\n\n(c) Either the job contractor or its employer-client may submit an ETA Form 9141,  Application for Prevailing Wage Determination,  describing the job opportunity to the NPWC. However, each of the joint employers is separately responsible for ensuring that the wage offer listed on the  Application for Temporary Employment Certification,  ETA Form 9142B, and related recruitment at least equals the prevailing wage rate determined by the NPWC and that all other wage obligations are met.\n\n(d)(1) A job contractor that is filing as a joint employer with its employer-client must submit to the NPC a completed  Application for Temporary Employment Certification,  ETA Form 9142, that clearly identifies the joint employers (the job contractor and its employer-client) and the employment relationship (including the actual worksite), in accordance with the instructions provided by the Department of Labor. The  Application for Temporary Employment Certification  must bear the original signature of the job contractor and the employer-client and be accompanied by the contract or agreement establishing the employers' relationship related to the workers sought.\n\n(2) By signing the  Application for Temporary Employment Certification,  each employer independently attests to the conditions of employment required of an employer participating in the H-2B program and assumes full responsibility for the accuracy of the representations made in the application and for all of the responsibilities of an employer in the H-2B program.\n\n(e)(1) Either the job contractor or its employer-client may place the required job order and conduct recruitment as described in \u00a7\u00a7 655.16 and 655.43 through 655.46. Also, either one of the joint employers may assume responsibility for interviewing applicants. However, both of the joint employers must sign the recruitment report that is submitted to the NPC with the  Application for Temporary Employment Certification,  ETA Form 9142B.\n\n(e)(1) Either the job contractor or its employer-client may place the required job order and conduct recruitment as described in \u00a7 655.16 and \u00a7\u00a7 655.42 through 655.46. Also, either one of the joint employers may assume responsibility for interviewing applicants. However, both of the joint employers must sign the recruitment report that is submitted to the NPC with the  Application for Temporary Employment Certification,  ETA Form 9142B.\n\n(2) The job order and all recruitment conducted by joint employers must satisfy the content requirements identified in \u00a7\u00a7 655.18 and 655.41. Additionally, in order to fully apprise applicants of the job opportunity and avoid potential confusion inherent in a job opportunity involving two employers, joint employer recruitment must clearly identify both employers (the job contractor and its employer-client) by name and must clearly identify the worksite location(s) where workers will perform labor or services.\n\n(3)(i) Provided that all of the employer-clients' job opportunities are in the same occupation and area of intended employment and have the same requirements and terms and conditions of employment, including dates of employment, a job contractor may combine more than one of its joint employer employer-clients' job opportunities in a single advertisement. Each advertisement must fully apprise potential workers of the job opportunity available with each employer-client and otherwise satisfy the advertising content requirements required for all H-2B-related advertisements, as identified in \u00a7 655.41. Such a shared advertisement must clearly identify the job contractor by name, the joint employment relationship, and the number of workers sought for each job opportunity, identified by employer-client name and location (e.g., 5 openings with Employer-Client 1 (worksite location), 3 openings with Employer-Client 2 (worksite location)).\n\n(ii) In addition, the advertisement must contain the following statement: \u201cApplicants may apply for any or all of the jobs listed. When applying, please identify the job(s) (by company and work location) you are applying to for the entire period of employment specified.\u201d If an applicant fails to identify one or more specific work location(s), that applicant is presumed to have applied to all work locations listed in the advertisement.\n\n(f) If an application for joint employers is approved, the NPC will issue one certification and send it to the job contractor. In order to ensure notice to both employers, a courtesy copy of the certification cover letter will be sent to the employer-client. (g) When submitting a certified  Application for Temporary Employment Certification  to USCIS, the job contractor should submit the complete ETA Form 9142B containing the original signatures of both the job contractor and employer-client."], ["20:20:3.0.2.1.27.1.25.20", 20, "Employees' Benefits", "V", "", "655", "PART 655\u2014TEMPORARY EMPLOYMENT OF FOREIGN WORKERS IN THE UNITED STATES", "A", "Subpart A\u2014Labor Certification Process for Temporary Non-Agricultural Employment in the United States (H-2B Workers)", "", "\u00a7 655.20 Assurances and obligations of H-2B employers.", "DOL", "", "", "", "An employer employing H-2B workers and/or workers in corresponding employment under an  Application for Temporary Employment Certification  has agreed as part of the  Application for Temporary Employment Certification  that it will abide by the following conditions with respect to its H-2B workers and any workers in corresponding employment:\n\n(a)  Rate of pay.  (1) The offered wage in the job order equals or exceeds the highest of the prevailing wage or Federal minimum wage, State minimum wage, or local minimum wage. The employer must pay at least the offered wage, free and clear, during the entire period of the  Application for Temporary Employment Certification  granted by OFLC.\n\n(2) The offered wage is not based on commissions, bonuses, or other incentives, including paying on a piece-rate basis, unless the employer guarantees a wage earned every workweek that equals or exceeds the offered wage.\n\n(3) If the employer requires one or more minimum productivity standards of workers as a condition of job retention, the standards must be specified in the job order and the employer must demonstrate that they are normal and usual for non-H-2B employers for the same occupation in the area of intended employment.\n\n(4) An employer that pays on a piece-rate basis must demonstrate that the piece rate is no less than the normal rate paid by non-H-2B employers to workers performing the same activity in the area of intended employment. The average hourly piece rate earnings must result in an amount at least equal to the offered wage. If the worker is paid on a piece rate basis and at the end of the workweek the piece rate does not result in average hourly piece rate earnings during the workweek at least equal to the amount the worker would have earned had the worker been paid at the offered hourly wage, then the employer must supplement the worker's pay at that time so that the worker's earnings are at least as much as the worker would have earned during the workweek if the worker had instead been paid at the offered hourly wage for each hour worked.\n\n(b)  Wages free and clear.  The payment requirements for wages in this section will be satisfied by the timely payment of such wages to the worker either in cash or negotiable instrument payable at par. The payment must be made finally and unconditionally and \u201cfree and clear.\u201d The principles applied in determining whether deductions are reasonable and payments are received free and clear and the permissibility of deductions for payments to third persons are explained in more detail in 29 CFR part 531.\n\n(c)  Deductions.  The employer must make all deductions from the worker's paycheck required by law. The job order must specify all deductions not required by law which the employer will make from the worker's pay; any such deductions not disclosed in the job order are prohibited. The wage payment requirements of paragraph (b) of this section are not met where unauthorized deductions, rebates, or refunds reduce the wage payment made to the worker below the minimum amounts required by the offered wage or where the worker fails to receive such amounts free and clear because the worker \u201ckicks back\u201d directly or indirectly to the employer or to another person for the employer's benefit the whole or part of the wages delivered to the worker. Authorized deductions are limited to: Those required by law, such as taxes payable by workers that are required to be withheld by the employer and amounts due workers which the employer is required by court order to pay to another; deductions for the reasonable cost or fair value of board, lodging, and facilities furnished; and deductions of amounts which are authorized to be paid to third persons for the worker's account and benefit through his or her voluntary assignment or order or which are authorized by a collective bargaining agreement with bona fide representatives of workers which covers the employer. Deductions for amounts paid to third persons for the worker's account and benefit which are not so authorized or are contrary to law or from which the employer, agent or recruiter including any agents or employees of these entities, or any affiliated person derives any payment, rebate, commission, profit, or benefit directly or indirectly, may not be made if they reduce the actual wage paid to the worker below the offered wage indicated on the  Application for Temporary Employment Certification.\n\n(d)  Job opportunity is full-time.  The job opportunity is a full-time temporary position, consistent with \u00a7 655.5, and the employer must use a single workweek as its standard for computing wages due. An employee's workweek must be a fixed and regularly recurring period of 168 hours\u2014seven consecutive 24-hour periods. It need not coincide with the calendar week but may begin on any day and at any hour of the day.\n\n(e)  Job qualifications and requirements.  Each job qualification and requirement must be listed in the job order and must be bona fide and consistent with the normal and accepted qualifications and requirements imposed by non-H-2B employers in the same occupation and area of intended employment. The employer's job qualifications and requirements imposed on U.S. workers must not be less favorable than the qualifications and requirements that the employer is imposing or will impose on H-2B workers. A qualification means a characteristic that is necessary to the individual's ability to perform the job in question. A requirement means a term or condition of employment which a worker is required to accept in order to obtain the job opportunity. The CO may require the employer to submit documentation to substantiate the appropriateness of any job qualification and/or requirement specified in the job order.\n\n(f)  Three-fourths guarantee.  (1) The employer must guarantee to offer the worker employment for a total number of work hours equal to at least three-fourths of the workdays in each 12-week period (each 6-week period if the period of employment covered by the job order is less than 120 days) beginning with the first workday after the arrival of the worker at the place of employment or the advertised first date of need, whichever is later, and ending on the expiration date specified in the job order or in its extensions, if any. See the exception in paragraph (y) of this section.\n\n(2) For purposes of this paragraph (f) a workday means the number of hours in a workday as stated in the job order. The employer must offer a total number of hours of work to ensure the provision of sufficient work to reach the three-fourths guarantee in each 12-week period (each 6-week period if the period of employment covered by the job order is less than 120 days) during the work period specified in the job order, or during any modified job order period to which the worker and employer have mutually agreed and that has been approved by the CO.\n\n(3) In the event the worker begins working later than the specified beginning date the guarantee period begins with the first workday after the arrival of the worker at the place of employment, and continues until the last day during which the job order and all extensions thereof are in effect.\n\n(4) The 12-week periods (6-week periods if the period of employment covered by the job order is less than 120 days) to which the guarantee applies are based upon the workweek used by the employer for pay purposes. The first 12-week period (or 6-week period, as appropriate) also includes any partial workweek, if the first workday after the worker's arrival at the place of employment is not the beginning of the employer's workweek, with the guaranteed number of hours increased on a pro rata basis (thus, the first period may include up to 12 weeks and 6 days (or 6 weeks and 6 days, as appropriate)). The final 12-week period (or 6-week period, as appropriate) includes any time remaining after the last full 12-week period (or 6-week period) ends, and thus may be as short as 1 day, with the guaranteed number of hours decreased on a pro rata basis.\n\n(5) Therefore, if, for example, a job order is for a 32-week period (a period greater than 120 days), during which the normal workdays and work hours for the workweek are specified as 5 days a week, 7 hours per day, the worker would have to be guaranteed employment for at least 315 hours in the first 12-week period (12 weeks \u00d7 35 hours/week = 420 hours \u00d7 75 percent = 315), at least 315 hours in the second 12-week period, and at least 210 hours (8 weeks \u00d7 35 hours/week = 280 hours \u00d7 75 percent = 210) in the final partial period. If the job order is for a 16-week period (less than 120 days), during which the normal workdays and work hours for the workweek are specified as 5 days a week, 7 hours per day, the worker would have to be guaranteed employment for at least 157.5 hours (6 weeks \u00d7 35 hours/week = 210 hours \u00d7 75 percent = 157.5) in the first 6-week period, at least 157.5 hours in the second 6-week period, and at least 105 hours (4 weeks \u00d7 35 hours/week = 140 hours \u00d7 75 percent = 105) in the final partial period.\n\n(6) If the worker is paid on a piece rate basis, the employer must use the worker's average hourly piece rate earnings or the offered wage, whichever is higher, to calculate the amount due under the guarantee.\n\n(7) A worker may be offered more than the specified hours of work on a single workday. For purposes of meeting the guarantee, however, the worker will not be required to work for more than the number of hours specified in the job order for a workday. The employer, however, may count all hours actually worked in calculating whether the guarantee has been met. If during any 12-week period (6-week period if the period of employment covered by the job order is less than 120 days) during the period of the job order the employer affords the U.S. or H-2B worker less employment than that required under paragraph (f)(1) of this section, the employer must pay such worker the amount the worker would have earned had the worker, in fact, worked for the guaranteed number of days. An employer has not met the work guarantee if the employer has merely offered work on three-fourths of the workdays in an 12-week period (or 6-week period, as appropriate) if each workday did not consist of a full number of hours of work time as specified in the job order.\n\n(8) Any hours the worker fails to work, up to a maximum of the number of hours specified in the job order for a workday, when the worker has been offered an opportunity to work in accordance with paragraph (f)(1) of this section, and all hours of work actually performed (including voluntary work over 8 hours in a workday), may be counted by the employer in calculating whether each 12-week period (or 6-week period, as appropriate) of guaranteed employment has been met. An employer seeking to calculate whether the guaranteed number of hours has been met must maintain the payroll records in accordance with this part.\n\n(g)  Impossibility of fulfillment.  If, before the expiration date specified in the job order, the services of the worker are no longer required for reasons beyond the control of the employer due to fire, weather, or other Act of God, or similar unforeseeable man-made catastrophic event (such as an oil spill or controlled flooding) that is wholly outside the employer's control that makes the fulfillment of the job order impossible, the employer may terminate the job order with the approval of the CO. In the event of such termination of a job order, the employer must fulfill a three-fourths guarantee, as described in paragraph (f) of this section, for the time that has elapsed from the start date listed in the job order or the first workday after the arrival of the worker at the place of employment, whichever is later, to the time of its termination. The employer must make efforts to transfer the H-2B worker or worker in corresponding employment to other comparable employment acceptable to the worker and consistent with the INA, as applicable. If a transfer is not effected, the employer must return the worker, at the employer's expense, to the place from which the worker (disregarding intervening employment) came to work for the employer, or transport the worker to the worker's next certified H-2B employer, whichever the worker prefers.\n\n(h)  Frequency of pay.  The employer must state in the job order the frequency with which the worker will be paid, which must be at least every 2 weeks or according to the prevailing practice in the area of intended employment, whichever is more frequent. Employers must pay wages when due.\n\n(i)  Earnings statements.  (1) The employer must keep accurate and adequate records with respect to the workers' earnings, including but not limited to: Records showing the nature, amount and location(s) of the work performed; the number of hours of work offered each day by the employer (broken out by hours offered both in accordance with and over and above the three-fourths guarantee in paragraph (f) of this section); the hours actually worked each day by the worker; if the number of hours worked by the worker is less than the number of hours offered, the reason(s) the worker did not work; the time the worker began and ended each workday; the rate of pay (both piece rate and hourly, if applicable); the worker's earnings per pay period; the worker's home address; and the amount of and reasons for any and all deductions taken from or additions made to the worker's wages.\n\n(2) The employer must furnish to the worker on or before each payday in one or more written statements the following information:\n\n(i) The worker's total earnings for each workweek in the pay period;\n\n(ii) The worker's hourly rate and/or piece rate of pay;\n\n(iii) For each workweek in the pay period the hours of employment offered to the worker (showing offers in accordance with the three-fourths guarantee as determined in paragraph (f) of this section, separate from any hours offered over and above the guarantee);\n\n(iv) For each workweek in the pay period the hours actually worked by the worker;\n\n(v) An itemization of all deductions made from or additions made to the worker's wages;\n\n(vi) If piece rates are used, the units produced daily;\n\n(vii) The beginning and ending dates of the pay period; and\n\n(viii) The employer's name, address and FEIN.\n\n(j)  Transportation and visa fees.  (1)(i)  Transportation to the place of employment.  The employer must provide or reimburse the worker for transportation and subsistence from the place from which the worker has come to work for the employer, whether in the U.S. or abroad, to the place of employment if the worker completes 50 percent of the period of employment covered by the job order (not counting any extensions). The employer may arrange and pay for the transportation and subsistence directly, advance at a minimum the most economical and reasonable common carrier cost of the transportation and subsistence to the worker before the worker's departure, or pay the worker for the reasonable costs incurred by the worker. When it is the prevailing practice of non-H-2B employers in the occupation in the area to do so or when the employer extends such benefits to similarly situated H-2B workers, the employer must advance the required transportation and subsistence costs (or otherwise provide them) to workers in corresponding employment who are traveling to the employer's worksite. The amount of the transportation payment must be no less (and is not required to be more) than the most economical and reasonable common carrier transportation charges for the distances involved. The amount of the daily subsistence must be at least the amount permitted in \u00a7 655.173. Where the employer will reimburse the reasonable costs incurred by the worker, it must keep accurate and adequate records of: The costs of transportation and subsistence incurred by the worker; the amount reimbursed; and the date(s) of reimbursement. Note that the FLSA applies independently of the H-2B requirements and imposes obligations on employers regarding payment of wages.\n\n(ii)  Transportation from the place of employment.  If the worker completes the period of employment covered by the job order (not counting any extensions), or if the worker is dismissed from employment for any reason by the employer before the end of the period, and the worker has no immediate subsequent H-2B employment, the employer must provide or pay at the time of departure for the worker's cost of return transportation and daily subsistence from the place of employment to the place from which the worker, disregarding intervening employment, departed to work for the employer. If the worker has contracted with a subsequent employer that has not agreed in the job order to provide or pay for the worker's transportation from the employer's worksite to such subsequent employer's worksite, the employer must provide or pay for that transportation and subsistence. If the worker has contracted with a subsequent employer that has agreed in the job order to provide or pay for the worker's transportation from the employer's worksite to such subsequent employer's worksite, the subsequent employer must provide or pay for such expenses.\n\n(iii)  Employer-provided transportation.  All employer-provided transportation must comply with all applicable Federal, State, and local laws and regulations and must provide, at a minimum, the same vehicle safety standards, driver licensure requirements, and vehicle insurance as required under 49 CFR parts 390, 393, and 396.\n\n(iv)  Disclosure.  All transportation and subsistence costs that the employer will pay must be disclosed in the job order.\n\n(2) The employer must pay or reimburse the worker in the first workweek for all visa, visa processing, border crossing, and other related fees (including those mandated by the government) incurred by the H-2B worker, but not for passport expenses or other charges primarily for the benefit of the worker.\n\n(k)  Employer-provided items.  The employer must provide to the worker, without charge or deposit charge, all tools, supplies, and equipment required to perform the duties assigned.\n\n(l)  Disclosure of job order.  The employer must provide to an H-2B worker outside of the U.S. no later than the time at which the worker applies for the visa, or to a worker in corresponding employment no later than on the day work commences, a copy of the job order including any subsequent approved modifications. For an H-2B worker changing employment from an H-2B employer to a subsequent H-2B employer, the copy must be provided no later than the time an offer of employment is made by the subsequent H-2B employer. The disclosure of all documents required by this paragraph (l) must be provided in a language understood by the worker, as necessary or reasonable.\n\n(m)  Notice of worker rights.  The employer must post and maintain in a conspicuous location at the place of employment a poster provided by the Department of Labor that sets out the rights and protections for H-2B workers and workers in corresponding employment. The employer must post the poster in English. To the extent necessary, the employer must request and post additional posters, as made available by the Department of Labor, in any language common to a significant portion of the workers if they are not fluent in English.\n\n(n)  No unfair treatment.  The employer has not and will not intimidate, threaten, restrain, coerce, blacklist, discharge or in any manner discriminate against, and has not and will not cause any person to intimidate, threaten, restrain, coerce, blacklist, discharge, or in any manner discriminate against, any person who has:\n\n(1) Filed a complaint under or related to 8 U.S.C. 1184(c), section 214(c) of the INA, 29 CFR part 503, or this subpart, or any other regulation promulgated thereunder;\n\n(2) Instituted or caused to be instituted any proceeding under or related to 8 U.S.C. 1184(c), section 214(c) of the INA, 29 CFR part 503, or this subpart or any other regulation promulgated thereunder;\n\n(3) Testified or is about to testify in any proceeding under or related to 8 U.S.C. 1184(c), section 214(c) of the INA, 29 CFR part 503, or this subpart or any other regulation promulgated thereunder;\n\n(4) Consulted with a workers' center, community organization, labor union, legal assistance program, or an attorney on matters related to 8 U.S.C. 1184(c), section 214(c) of the INA, 29 CFR part 503, or this subpart or any other regulation promulgated thereunder; or\n\n(5) Exercised or asserted on behalf of himself/herself or others any right or protection afforded by 8 U.S.C. 1184(c), section 214(c) of the INA, 29 CFR part 503, or this subpart or any other regulation promulgated thereunder.\n\n(o)  Comply with the prohibitions against employees paying fees.  The employer and its attorney, agents, or employees have not sought or received payment of any kind from the worker for any activity related to obtaining H-2B labor certification or employment, including payment of the employer's attorney or agent fees, application and  H-2B Petition  fees, recruitment costs, or any fees attributed to obtaining the approved  Application for Temporary Employment Certification.  For purposes of this paragraph (o), payment includes, but is not limited to, monetary payments, wage concessions (including deductions from wages, salary, or benefits), kickbacks, bribes, tributes, in-kind payments, and free labor. All wages must be paid free and clear. This provision does not prohibit employers or their agents from receiving reimbursement for costs that are the responsibility and primarily for the benefit of the worker, such as government-required passport fees.\n\n(p)  Contracts with third parties to comply with prohibitions.  The employer must contractually prohibit in writing any agent or recruiter (or any agent or employee of such agent or recruiter) whom the employer engages, either directly or indirectly, in recruitment of H-2B workers to seek or receive payments or other compensation from prospective workers. The contract must include the following statement: \u201cUnder this agreement, [name of agent, recruiter] and any agent of or employee of [name of agent or recruiter] are prohibited from seeking or receiving payments from any prospective employee of [employer name] at any time, including before or after the worker obtains employment. Payments include but are not limited to, any direct or indirect fees paid by such employees for recruitment, job placement, processing, maintenance, attorneys' fees, agent fees, application fees, or petition fees.\u201d\n\n(q)  Prohibition against preferential treatment of foreign workers.  The employer's job offer must offer to U.S. workers no less than the same benefits, wages, and working conditions that the employer is offering, intends to offer, or will provide to H-2B workers. Job offers may not impose on U.S. workers any restrictions or obligations that will not be imposed on the employer's H-2B workers. This does not relieve the employer from providing to H-2B workers at least the minimum benefits, wages, and working conditions which must be offered to U.S. workers consistent with this section.\n\n(r)  Non-discriminatory hiring practices.  The job opportunity is, and through the period set forth in paragraph (t) of this section must continue to be, open to any qualified U.S. worker regardless of race, color, national origin, age, sex, religion, disability, or citizenship. Rejections of any U.S. workers who applied or apply for the job must only be for lawful, job-related reasons, and those not rejected on this basis have been or will be hired. In addition, the employer has and will continue to retain records of all hired workers and rejected applicants as required by \u00a7 655.56.\n\n(s)  Recruitment requirements.  The employer must conduct all required recruitment activities, including any additional employer-conducted recruitment activities as directed by the CO, and as specified in \u00a7\u00a7 655.40 through 655.46.\n\n(t)  Continuing requirement to hire U.S. workers.  The employer has and will continue to cooperate with the SWA by accepting referrals of all qualified U.S. workers who apply (or on whose behalf a job application is made) for the job opportunity, and must provide employment to any qualified U.S. worker who applies to the employer for the job opportunity, until 21 days before the date of need.\n\n(u)  No strike or lockout.  There is no strike or lockout at any of the employer's worksites within the area of intended employment for which the employer is requesting H-2B certification at the time the  Application for Temporary Employment Certification  is filed.\n\n(v)  No recent or future layoffs.  The employer has not laid off and will not lay off any similarly employed U.S. worker in the occupation that is the subject of the  Application for Temporary Employment Certification  in the area of intended employment within the period beginning 120 calendar days before the date of need through the end of the period of certification. A layoff for lawful, job-related reasons such as lack of work or the end of a season is permissible if all H-2B workers are laid off before any U.S. worker in corresponding employment.\n\n(w)  Contact with former U.S. employees.  The employer will contact (by mail or other effective means) its former U.S. workers, including those who have been laid off within 120 calendar days before the date of need (except those who were dismissed for cause or who abandoned the worksite), employed by the employer in the occupation at the place of employment during the previous year, disclose the terms of the job order, and solicit their return to the job.\n\n(x)  Area of intended employment and job opportunity.  The employer must not place any H-2B workers employed under the approved  Application for Temporary Employment Certification  outside the area of intended employment or in a job opportunity not listed on the approved  Application for Temporary Employment Certification  unless the employer has obtained a new approved  Application for Temporary Employment Certification.\n\n(y)  Abandonment/termination of employment.  Upon the separation from employment of worker(s) employed under the  Application for Temporary Employment Certification  or workers in corresponding employment, if such separation occurs before the end date of the employment specified in the  Application for Temporary Employment Certification,  the employer must notify OFLC in writing of the separation from employment not later than 2 work days after such separation is discovered by the employer. In addition, the employer must notify DHS in writing (or any other method specified by the Department of Labor or DHS in the  Federal Register  or the Code of Federal Regulations) of such separation of an H-2B worker. An abandonment or abscondment is deemed to begin after a worker fails to report for work at the regularly scheduled time for 5 consecutive working days without the consent of the employer. If the separation is due to the voluntary abandonment of employment by the H-2B worker or worker in corresponding employment, and the employer provides appropriate notification specified under this paragraph (y), the employer will not be responsible for providing or paying for the subsequent transportation and subsistence expenses of that worker under this section, and that worker is not entitled to the three-fourths guarantee described in paragraph (f) of this section. The employer's obligation to guarantee three-fourths of the work described in paragraph (f) ends with the last full 12-week period (or 6-week period, as appropriate) preceding the worker's voluntary abandonment or termination for cause.\n\n(z)  Compliance with applicable laws.  During the period of employment specified on the  Application for Temporary Employment Certification,  the employer must comply with all applicable Federal, State and local employment-related laws and regulations, including health and safety laws. This includes compliance with 18 U.S.C. 1592(a), with respect to prohibitions against employers, the employer's agents or their attorneys knowingly holding, destroying or confiscating workers' passports, visas, or other immigration documents.\n\n(aa)  Disclosure of foreign worker recruitment.  The employer, and its attorney or agent, as applicable, must comply with \u00a7 655.9 by providing a copy of all agreements with any agent or recruiter whom it engages or plans to engage in the recruitment of H-2B workers, and the identity and location of the persons or entities hired by or working for the agent or recruiter and any of the agents or employees of those persons and entities, to recruit foreign workers. Pursuant to \u00a7 655.15(a), the agreements and information must be filed with the  Application for Temporary Employment Certification.\n\n(bb)  Cooperation with investigators.  The employer must cooperate with any employee of the Secretary who is exercising or attempting to exercise the Department's authority pursuant to 8 U.S.C. 1184(c)(14)(B), section 214(c)(14)(B) of the INA."], ["20:20:3.0.2.1.27.1.25.21", 20, "Employees' Benefits", "V", "", "655", "PART 655\u2014TEMPORARY EMPLOYMENT OF FOREIGN WORKERS IN THE UNITED STATES", "A", "Subpart A\u2014Labor Certification Process for Temporary Non-Agricultural Employment in the United States (H-2B Workers)", "", "\u00a7\u00a7 655.21-655.29 [Reserved]", "DOL", "", "", "", ""], ["20:20:3.0.2.1.27.1.26.22", 20, "Employees' Benefits", "V", "", "655", "PART 655\u2014TEMPORARY EMPLOYMENT OF FOREIGN WORKERS IN THE UNITED STATES", "A", "Subpart A\u2014Labor Certification Process for Temporary Non-Agricultural Employment in the United States (H-2B Workers)", "", "\u00a7 655.30 Processing of an application and job order.", "DOL", "", "", "", "(a)  NPC review.  The CO will review the  Application for Temporary Employment Certification  and job order for compliance with all applicable program requirements.\n\n(b)  Mailing and postmark requirements.  Any notice or request sent by the CO to an employer requiring a response will be mailed to the address provided in the  Application for Temporary Employment Certification  using methods to assure next day delivery, including electronic mail. The employer's response to such a notice or request must be mailed using methods to assure next day delivery, including electronic mail, and be sent by the due date or the next business day if the due date falls on a Saturday, Sunday or Federal holiday.\n\n(c)  Information dissemination.  OFLC may forward information received in the course of processing an  Application for Temporary Employment Certification  and program integrity measures to WHD, or any other Federal agency, as appropriate, for investigation and/or enforcement purposes."], ["20:20:3.0.2.1.27.1.26.23", 20, "Employees' Benefits", "V", "", "655", "PART 655\u2014TEMPORARY EMPLOYMENT OF FOREIGN WORKERS IN THE UNITED STATES", "A", "Subpart A\u2014Labor Certification Process for Temporary Non-Agricultural Employment in the United States (H-2B Workers)", "", "\u00a7 655.31 Notice of deficiency.", "DOL", "", "", "", "(a)  Notification timeline.  If the CO determines the  Application for Temporary Employment Certification  and/or job order is incomplete, contains errors or inaccuracies, or does not meet the requirements set forth in this subpart, the CO will notify the employer within 7 business days from the CO's receipt of the  Application for Temporary Employment Certification.  If applicable, the Notice of Deficiency will include job order deficiencies identified by the SWA under \u00a7 655.16. The CO will send a copy of the Notice of Deficiency to the SWA serving the area of intended employment identified by the employer on its job order, and if applicable, to the employer's attorney or agent.\n\n(b)  Notice content.  The Notice of Deficiency will:\n\n(1) State the reason(s) why the  Application for Temporary Employment Certification  or job order fails to meet the criteria for acceptance and state the modification needed for the CO to issue a Notice of Acceptance;\n\n(2) Offer the employer an opportunity to submit a modified  Application for Temporary Employment Certification  or job order within 10 business days from the date of the Notice of Deficiency. The Notice will state the modification needed for the CO to issue a Notice of Acceptance;\n\n(3) Offer the employer an opportunity to request administrative review of the Notice of Deficiency before an ALJ under provisions set forth in \u00a7 655.61. The Notice will inform the employer that it must submit a written request for review to the Chief ALJ of DOL within 10 business days from the date the Notice of Deficiency is issued by facsimile or other means normally assuring next day delivery, and that the employer must simultaneously serve a copy on the CO. The Notice will also state that the employer may submit any legal arguments that the employer believes will rebut the basis of the CO's action; and\n\n(4) State that if the employer does not comply with the requirements of this section by either submitting a modified application within 10 business days or requesting administrative review before an ALJ under \u00a7 655.61, the CO will deny the  Application for Temporary Employment Certification.  The Notice will inform the employer that the denial of the  Application for Temporary Employment Certification  is final, and cannot be appealed. The Department of Labor will not further consider that  Application for Temporary Employment Certification."], ["20:20:3.0.2.1.27.1.26.24", 20, "Employees' Benefits", "V", "", "655", "PART 655\u2014TEMPORARY EMPLOYMENT OF FOREIGN WORKERS IN THE UNITED STATES", "A", "Subpart A\u2014Labor Certification Process for Temporary Non-Agricultural Employment in the United States (H-2B Workers)", "", "\u00a7 655.32 Submission of a modified application or job order.", "DOL", "", "", "", "(a)  Review of a modified Application for Temporary Employment Certification or job order.  Upon receipt of a response to a Notice of Deficiency, including any modifications, the CO will review the response. The CO may issue one or more additional Notices of Deficiency before issuing a decision. The employer's failure to comply with a Notice of Deficiency, including not responding in a timely manner or not providing all required documentation, will result in a denial of the  Application for Temporary Employment Certification.\n\n(b)  Acceptance of a modified Application for Temporary Employment Certification or job order.  If the CO accepts the modification(s) to the  Application for Temporary Employment Certification  and/or job order, the CO will issue a Notice of Acceptance to the employer. The CO will send a copy of the Notice of Acceptance to the SWA instructing it to make any necessary modifications to the not yet posted job order and, if applicable, to the employer's attorney or agent, and follow the procedure set forth in \u00a7 655.33.\n\n(c)  Denial of a modified Application for Temporary Employment Certification or job order.  If the CO finds the response to Notice of Deficiency unacceptable, the CO will deny the  Application for Temporary Employment Certification  in accordance with the labor certification determination provisions in \u00a7 655.51.\n\n(d)  Appeal from denial of a modified Application for Temporary Employment Certification or job order.  The procedures for appealing a denial of a modified  Application for Temporary Employment Certification  and/or job order are the same as for appealing the denial of a non-modified  Application for Temporary Employment Certification  outlined in \u00a7 655.61.\n\n(e)  Post acceptance modifications.  Irrespective of the decision to accept the  Application for Temporary Employment Certification,  the CO may require modifications to the job order at any time before the final determination to grant or deny the  Application for Temporary Employment Certification  if the CO determines that the offer of employment does not contain all the minimum benefits, wages, and working condition provisions as set forth in \u00a7 655.18. The employer must make such modification, or certification will be denied under \u00a7 655.53. The employer must provide all workers recruited in connection with the job opportunity in the  Application for Temporary Employment Certification  with a copy of the modified job order no later than the date work commences, as approved by the CO."], ["20:20:3.0.2.1.27.1.26.25", 20, "Employees' Benefits", "V", "", "655", "PART 655\u2014TEMPORARY EMPLOYMENT OF FOREIGN WORKERS IN THE UNITED STATES", "A", "Subpart A\u2014Labor Certification Process for Temporary Non-Agricultural Employment in the United States (H-2B Workers)", "", "\u00a7 655.33 Notice of acceptance.", "DOL", "", "", "", "(a)  Notification timeline.  If the CO determines the  Application for Temporary Employment Certification  and job order are complete and meet the requirements of this subpart, the CO will notify the employer in writing within 7 business days from the date the CO received the  Application for Temporary Employment Certification  and job order or modification thereof. A copy of the Notice of Acceptance will be sent to the SWA serving the area of intended employment identified by the employer on its job order and, if applicable, to the employer's attorney or agent.\n\n(b)  Notice content.  The notice will:\n\n(1) Direct the employer to engage in recruitment of U.S. workers as provided in \u00a7\u00a7 655.40 through 655.46, including any additional recruitment ordered by the CO under \u00a7 655.46;\n\n(2) State that such employer-conducted recruitment is in addition to the job order being circulated by the SWA(s) and that the employer must conduct recruitment within 14 calendar days from the date the Notice of Acceptance is issued, consistent with \u00a7 655.40;\n\n(3) Direct the SWA to place the job order into intra- and interstate clearance as set forth in \u00a7 655.16 and to commence such clearance by:\n\n(i) Sending a copy of the job order to other States listed as anticipated worksites in the  Application for Temporary Employment Certification  and job order, if applicable; and\n\n(ii) Sending a copy of the job order to the SWAs for all States designated by the CO for interstate clearance;\n\n(4) Instruct the SWA to keep the approved job order on its active file until the end of the recruitment period as defined in \u00a7 655.40(c), and to transmit the same instruction to other SWAs to which it circulates the job order in the course of interstate clearance;\n\n(5) Where the occupation or industry is traditionally or customarily unionized, direct the SWA to circulate a copy of the job order to the following labor organizations:\n\n(i) The central office of the State Federation of Labor in the State(s) in which work will be performed; and\n\n(ii) The office(s) of local union(s) representing employees in the same or substantially equivalent job classification in the area(s) in which work will be performed;\n\n(6) Advise the employer, as appropriate, that it must contact the appropriate designated community-based organization(s) with notice of the job opportunity; and\n\n(7) Require the employer to submit a report of its recruitment efforts as specified in \u00a7 655.48."], ["20:20:3.0.2.1.27.1.26.26", 20, "Employees' Benefits", "V", "", "655", "PART 655\u2014TEMPORARY EMPLOYMENT OF FOREIGN WORKERS IN THE UNITED STATES", "A", "Subpart A\u2014Labor Certification Process for Temporary Non-Agricultural Employment in the United States (H-2B Workers)", "", "\u00a7 655.34 Electronic job registry.", "DOL", "", "", "", "(a)  Location of and placement in the electronic job registry.  Upon acceptance of the  Application for Temporary Employment Certification  under \u00a7 655.33, the CO will place for public examination a copy of the job order posted by the SWA on the Department's electronic job registry, including any amendments or required modifications approved by the CO.\n\n(b)  Length of posting on electronic job registry.  The Department of Labor will keep the job order posted on the electronic job registry until the end of the recruitment period, as set forth in \u00a7 655.40(c).\n\n(c)  Conclusion of active posting.  Once the recruitment period has concluded the job order will be placed in inactive status on the electronic job registry."], ["20:20:3.0.2.1.27.1.26.27", 20, "Employees' Benefits", "V", "", "655", "PART 655\u2014TEMPORARY EMPLOYMENT OF FOREIGN WORKERS IN THE UNITED STATES", "A", "Subpart A\u2014Labor Certification Process for Temporary Non-Agricultural Employment in the United States (H-2B Workers)", "", "\u00a7 655.35 Amendments to an application or job order.", "DOL", "", "", "", "(a)  Increases in number of workers.  The employer may request to increase the number of workers noted in the  H-2B Registration  by no more than 20 percent (50 percent for employers requesting fewer than 10 workers). All requests for increasing the number of workers must be made in writing and will not be effective until approved by the CO. In considering whether to approve the request, the CO will determine whether the proposed amendment(s) are sufficiently justified and must take into account the effect of the changes on the underlying labor market test for the job opportunity. Upon acceptance of an amendment, the CO will submit to the SWA any necessary changes to the job order and update the electronic job registry. The employer must promptly provide copies of any approved amendments to all U.S. workers hired under the original job order.\n\n(b)  Minor changes to the period of employment.  The employer may request minor changes to the total period of employment listed on its  Application for Temporary Employment Certification  and job order, for a period of up to 14 days, but the period of employment may not exceed a total of 9 months, except in the event of a one-time occurrence. All requests for minor changes to the total period of employment must be made in writing and will not be effective until approved by the CO. In considering whether to approve the request, the CO will determine whether the proposed amendment(s) are sufficiently justified and must take into account the effect of the changes on the underlying labor market test for the job opportunity. Upon acceptance of an amendment, the CO will submit to the SWA any necessary changes to the job order and update the electronic job registry. The employer must promptly provide copies of any approved amendments to all U.S. workers hired under the original job order\n\n(c)  Other amendments to the Application for Temporary Employment Certification and job order.  The employer may request other amendments to the  Application for Temporary Employment Certification  and job order. All such requests must be made in writing and will not be effective until approved by the CO. In considering whether to approve the request, the CO will determine whether the proposed amendment(s) are sufficiently justified and must take into account the effect of the changes on the underlying labor market test for the job opportunity. Upon acceptance of an amendment, the CO will submit to the SWA any necessary changes to the job order and update the electronic job registry.\n\n(d)  Amendments after certification are not permitted.  The employer must promptly provide copies of any approved amendments to all U.S. workers hired under the original job order."], ["20:20:3.0.2.1.27.1.26.28", 20, "Employees' Benefits", "V", "", "655", "PART 655\u2014TEMPORARY EMPLOYMENT OF FOREIGN WORKERS IN THE UNITED STATES", "A", "Subpart A\u2014Labor Certification Process for Temporary Non-Agricultural Employment in the United States (H-2B Workers)", "", "\u00a7\u00a7 655.36-655.39 [Reserved]", "DOL", "", "", "", ""], ["20:20:3.0.2.1.27.1.27.29", 20, "Employees' Benefits", "V", "", "655", "PART 655\u2014TEMPORARY EMPLOYMENT OF FOREIGN WORKERS IN THE UNITED STATES", "A", "Subpart A\u2014Labor Certification Process for Temporary Non-Agricultural Employment in the United States (H-2B Workers)", "", "\u00a7 655.40 Employer-conducted recruitment.", "DOL", "", "", "[42 FR 45899, Sept. 13, 1977, as amended at 84 FR 62446, Nov. 15, 2019]", "(a)  Employer obligations.  Employers must conduct recruitment of U.S. workers to ensure that there are not qualified U.S. workers who will be available for the positions listed in the  Application for Temporary Employment Certification.  U.S. Applicants can be rejected only for lawful job-related reasons.\n\n(b)  Employer-conducted recruitment period.  Unless otherwise instructed by the CO, the employer must conduct the recruitment described in \u00a7\u00a7 655.43 through 655.46 within 14 calendar days from the date the Notice of Acceptance is issued. All employer-conducted recruitment must be completed before the employer submits the recruitment report as required in \u00a7 655.48.\n\n(c)  U.S. workers.  Employers must continue to accept referrals and applications of all U.S. applicants interested in the position until 21 days before the date of need.\n\n(d)  Interviewing U.S. workers.  Employers that wish to require interviews must conduct those interviews by phone or provide a procedure for the interviews to be conducted in the location where the worker is being recruited so that the worker incurs little or no cost. Employers cannot provide potential H-2B workers with more favorable treatment with respect to the requirement for, and conduct of, interviews.\n\n(e)  Qualified and available U.S. workers.  The employer must consider all U.S. applicants for the job opportunity. The employer must accept and hire any applicants who are qualified and who will be available.\n\n(f)  Recruitment report.  The employer must prepare a recruitment report meeting the requirements of \u00a7 655.48."], ["20:20:3.0.2.1.27.1.27.30", 20, "Employees' Benefits", "V", "", "655", "PART 655\u2014TEMPORARY EMPLOYMENT OF FOREIGN WORKERS IN THE UNITED STATES", "A", "Subpart A\u2014Labor Certification Process for Temporary Non-Agricultural Employment in the United States (H-2B Workers)", "", "\u00a7 655.41 Advertising requirements.", "DOL", "", "", "[42 FR 45899, Sept. 13, 1977, as amended at 84 FR 62446, Nov. 15, 2019]", "(a) All recruitment conducted under \u00a7\u00a7 655.43 through 655.46 must contain terms and conditions of employment that are not less favorable than those offered to the H-2B workers and, at a minimum, must comply with the assurances applicable to job orders as set forth in \u00a7 655.18(a).\n\n(b) All advertising must contain the following information:\n\n(1) The employer's name and contact information;\n\n(2) The geographic area of intended employment with enough specificity to apprise applicants of any travel requirements and where applicants will likely have to reside to perform the services or labor;\n\n(3) A description of the job opportunity for which certification is sought with sufficient information to apprise U.S. workers of the services or labor to be performed, including the duties, the minimum education and experience requirements, the work hours and days, and the anticipated start and end dates of the job opportunity;\n\n(4) A statement that the job opportunity is a temporary, full-time position including the total number of job openings the employer intends to fill;\n\n(5) If applicable, a statement that overtime will be available to the worker and the wage offer(s) for working any overtime hours;\n\n(6) If applicable, a statement indicating that on-the-job training will be provided to the worker;\n\n(7) The wage that the employer is offering, intends to offer or will provide to the H-2B workers or, in the event that there are multiple wage offers, the range of applicable wage offers, each of which must equal or exceed the highest of the prevailing wage or the Federal, State, or local minimum wage;\n\n(8) If applicable, any board, lodging, or other facilities the employer will offer to workers or intends to assist workers in securing;\n\n(9) All deductions not required by law that the employer will make from the worker's paycheck, including, if applicable, reasonable deduction for board, lodging, and other facilities offered to the workers;\n\n(10) A statement that transportation and subsistence from the place where the worker has come to work for the employer to the place of employment and return transportation and subsistence will be provided, as required by \u00a7 655.20(j)(1);\n\n(11) If applicable, a statement that work tools, supplies, and equipment will be provided to the worker without charge;\n\n(12) If applicable, a statement that daily transportation to and from the worksite will be provided by the employer;\n\n(13) A statement summarizing the three-fourths guarantee as required by \u00a7 655.20(f); and\n\n(14) A statement directing applicants to apply for the job opportunity at the nearest office of the SWA in the State in which the advertisement appeared, the SWA contact information, and, if applicable, the job order number."], ["20:20:3.0.2.1.27.1.27.31", 20, "Employees' Benefits", "V", "", "655", "PART 655\u2014TEMPORARY EMPLOYMENT OF FOREIGN WORKERS IN THE UNITED STATES", "A", "Subpart A\u2014Labor Certification Process for Temporary Non-Agricultural Employment in the United States (H-2B Workers)", "", "\u00a7 655.42 [Reserved]", "DOL", "", "", "", ""], ["20:20:3.0.2.1.27.1.27.32", 20, "Employees' Benefits", "V", "", "655", "PART 655\u2014TEMPORARY EMPLOYMENT OF FOREIGN WORKERS IN THE UNITED STATES", "A", "Subpart A\u2014Labor Certification Process for Temporary Non-Agricultural Employment in the United States (H-2B Workers)", "", "\u00a7 655.43 Contact with former U.S. employees.", "DOL", "", "", "", "The employer must contact (by mail or other effective means) its former U.S. workers, including those who have been laid off within 120 calendar days before the date of need, employed by the employer in the occupation at the place of employment during the previous year (except those who were dismissed for cause or who abandoned the worksite), disclose the terms of the job order, and solicit their return to the job. The employer must maintain documentation sufficient to prove such contact in accordance with \u00a7 655.56."], ["20:20:3.0.2.1.27.1.27.33", 20, "Employees' Benefits", "V", "", "655", "PART 655\u2014TEMPORARY EMPLOYMENT OF FOREIGN WORKERS IN THE UNITED STATES", "A", "Subpart A\u2014Labor Certification Process for Temporary Non-Agricultural Employment in the United States (H-2B Workers)", "", "\u00a7 655.44 [Reserved]", "DOL", "", "", "", ""], ["20:20:3.0.2.1.27.1.27.34", 20, "Employees' Benefits", "V", "", "655", "PART 655\u2014TEMPORARY EMPLOYMENT OF FOREIGN WORKERS IN THE UNITED STATES", "A", "Subpart A\u2014Labor Certification Process for Temporary Non-Agricultural Employment in the United States (H-2B Workers)", "", "\u00a7 655.45 Contact with bargaining representative, posting and other contact requirements.", "DOL", "", "", "", "(a) If there is a bargaining representative for any of the employer's employees in the occupation and area of intended employment, the employer must provide written notice of the job opportunity, by providing a copy of the  Application for Temporary Employment Certification  and the job order, and maintain documentation that it was sent to the bargaining representative(s). An employer governed by this paragraph (a) must include information in its recruitment report that confirms that the bargaining representative(s) was contacted and notified of the position openings and whether the organization referred qualified U.S. worker(s), including the number of referrals, or was non-responsive to the employer's requests.\n\n(b) If there is no bargaining representative, the employer must post the availability of the job opportunity in at least 2 conspicuous locations at the place(s) of anticipated employment or in some other manner that provides reasonable notification to all employees in the job classification and area in which the work will be performed by the H-2B workers. Electronic posting, such as displaying the notice prominently on any internal or external Web site that is maintained by the employer and customarily used for notices to employees about terms and conditions of employment, is sufficient to meet this posting requirement as long as it otherwise meets the requirements of this section. The notice must meet the requirements under \u00a7 655.41 and be posted for at least 15 consecutive business days. The employer must maintain a copy of the posted notice and identify where and when it was posted in accordance with \u00a7 655.56.\n\n(c) If appropriate to the occupation and area of intended employment, as indicated by the CO in the Notice of Acceptance, the employer must provide written notice of the job opportunity to a community-based organization, and maintain documentation that it was sent to any designated community-based organization. An employer governed by this paragraph (c) must include information in its recruitment report that confirms that the community-based organization was contacted and notified of the position openings and whether the organization referred qualified U.S. worker(s), including the number of referrals, or was non-responsive to the employer's requests."], ["20:20:3.0.2.1.27.1.27.35", 20, "Employees' Benefits", "V", "", "655", "PART 655\u2014TEMPORARY EMPLOYMENT OF FOREIGN WORKERS IN THE UNITED STATES", "A", "Subpart A\u2014Labor Certification Process for Temporary Non-Agricultural Employment in the United States (H-2B Workers)", "", "\u00a7 655.46 Additional employer-conducted recruitment.", "DOL", "", "", "", "(a)  Requirement to conduct additional recruitment.  The employer may be instructed by the CO to conduct additional reasonable recruitment. Such recruitment may be required at the discretion of the CO where the CO has determined that there is a likelihood that U.S. workers who are qualified and will be available for the work, including but not limited to where the job opportunity is located in an Area of Substantial Unemployment.\n\n(b)  Nature of the additional employer-conducted recruitment.  The CO will describe the precise number and nature of the additional recruitment efforts. Additional recruitment may include, but is not limited to, posting on the employer's Web site or another Web site, contact with additional community-based organizations, additional contact with State One-Stop Career Centers, and other print advertising, such as using a professional, trade or ethnic publication where such a publication is appropriate for the occupation and the workers likely to apply for the job opportunity. When assessing the appropriateness of a particular recruitment method, the CO will consider the cost of the additional recruitment and the likelihood that the additional recruitment method(s) will identify qualified and available U.S. workers.\n\n(c)  Proof of the additional employer-conducted recruitment.  The CO will specify the documentation or other supporting evidence that must be maintained by the employer as proof that the additional recruitment requirements were met. Documentation must be maintained as required in \u00a7 655.56."], ["20:20:3.0.2.1.27.1.27.36", 20, "Employees' Benefits", "V", "", "655", "PART 655\u2014TEMPORARY EMPLOYMENT OF FOREIGN WORKERS IN THE UNITED STATES", "A", "Subpart A\u2014Labor Certification Process for Temporary Non-Agricultural Employment in the United States (H-2B Workers)", "", "\u00a7 655.47 Referrals of U.S. workers.", "DOL", "", "", "", "SWAs may only refer for employment individuals who have been apprised of all the material terms and conditions of employment and who are qualified and will be available for employment."], ["20:20:3.0.2.1.27.1.27.37", 20, "Employees' Benefits", "V", "", "655", "PART 655\u2014TEMPORARY EMPLOYMENT OF FOREIGN WORKERS IN THE UNITED STATES", "A", "Subpart A\u2014Labor Certification Process for Temporary Non-Agricultural Employment in the United States (H-2B Workers)", "", "\u00a7 655.48 Recruitment report.", "DOL", "", "", "", "(a)  Requirements of the recruitment report.  The employer must prepare, sign, and date a recruitment report. Where recruitment was conducted by a job contractor or its employer-client, both joint employers must sign the recruitment report in accordance with \u00a7 655.19(e). The recruitment report must be submitted by a date specified by the CO in the Notice of Acceptance and contain the following information:\n\n(1) The name of each recruitment activity or source (e.g., job order and the name of the newspaper);\n\n(2) The name and contact information of each U.S. worker who applied or was referred to the job opportunity up to the date of the preparation of the recruitment report, and the disposition of each worker's application. The employer must clearly indicate whether the job opportunity was offered to the U.S. worker and whether the U.S. worker accepted or declined;\n\n(3) Confirmation that former U.S. employees were contacted, if applicable, and by what means;\n\n(4) Confirmation that the bargaining representative was contacted, if applicable, and by what means, or that the employer posted the availability of the job opportunity to all employees in the job classification and area in which the work will be performed by the H-2B workers;\n\n(5) Confirmation that the community-based organization designated by the CO was contacted, if applicable;\n\n(6) If applicable, confirmation that additional recruitment was conducted as directed by the CO; and\n\n(7) If applicable, for each U.S. worker who applied for the position but was not hired, the lawful job-related reason(s) for not hiring the U.S. worker.\n\n(b)  Duty to update recruitment report.  The employer must continue to update the recruitment report throughout the recruitment period. In a joint employment situation, either the job contractor or the employer-client may update the recruitment report. The updated report must be signed, dated and need not be submitted to the Department of Labor, but must be made available in the event of a post-certification audit or upon request by DOL."], ["20:20:3.0.2.1.27.1.27.38", 20, "Employees' Benefits", "V", "", "655", "PART 655\u2014TEMPORARY EMPLOYMENT OF FOREIGN WORKERS IN THE UNITED STATES", "A", "Subpart A\u2014Labor Certification Process for Temporary Non-Agricultural Employment in the United States (H-2B Workers)", "", "\u00a7 655.49 [Reserved]", "DOL", "", "", "", ""], ["20:20:3.0.2.1.27.1.28.39", 20, "Employees' Benefits", "V", "", "655", "PART 655\u2014TEMPORARY EMPLOYMENT OF FOREIGN WORKERS IN THE UNITED STATES", "A", "Subpart A\u2014Labor Certification Process for Temporary Non-Agricultural Employment in the United States (H-2B Workers)", "", "\u00a7 655.50 Determinations.", "DOL", "", "", "", "(a)  Certifying Officers (COs).  The Administrator, OFLC is the Department's National CO. The Administrator, OFLC and the CO(s), by virtue of delegation from the Administrator, OFLC, have the authority to certify or deny  Applications for Temporary Employment Certification  under the H-2B nonimmigrant classification. If the Administrator, OFLC directs that certain types of temporary labor certification applications or a specific  Application for Temporary Employment Certification  under the H-2B nonimmigrant classification be handled by the OFLC's National Office, the Director of the NPC will refer such applications to the Administrator, OFLC.\n\n(b)  Determination.  Except as otherwise provided in this paragraph (b), the CO will make a determination either to certify or deny the  Application for Temporary Employment Certification.  The CO will certify the application only if the employer has met all the requirements of this subpart, including the criteria for certification in \u00a7 655.51, thus demonstrating that there is an insufficient number of U.S. workers who are qualified and who will be available for the job opportunity for which certification is sought and that the employment of the H-2B workers will not adversely affect the wages and working conditions of similarly employed U.S. workers."], ["20:20:3.0.2.1.27.1.28.40", 20, "Employees' Benefits", "V", "", "655", "PART 655\u2014TEMPORARY EMPLOYMENT OF FOREIGN WORKERS IN THE UNITED STATES", "A", "Subpart A\u2014Labor Certification Process for Temporary Non-Agricultural Employment in the United States (H-2B Workers)", "", "\u00a7 655.51 Criteria for certification.", "DOL", "", "", "", "(a) The criteria for certification include whether the employer has a valid  H-2B Registration  to participate in the H-2B program and has complied with all of the requirements necessary to grant the labor certification.\n\n(b) In making a determination whether there are insufficient U.S. workers to fill the employer's job opportunity, the CO will count as available any U.S. worker referred by the SWA or any U.S. worker who applied (or on whose behalf an application is made) directly to the employer, but who was rejected by the employer for other than a lawful job-related reason.\n\n(c) A certification will not be granted to an employer that has failed to comply with one or more sanctions or remedies imposed by final agency actions under the H-2B program."], ["20:20:3.0.2.1.27.1.28.41", 20, "Employees' Benefits", "V", "", "655", "PART 655\u2014TEMPORARY EMPLOYMENT OF FOREIGN WORKERS IN THE UNITED STATES", "A", "Subpart A\u2014Labor Certification Process for Temporary Non-Agricultural Employment in the United States (H-2B Workers)", "", "\u00a7 655.52 Approved certification.", "DOL", "", "", "", "If a temporary labor certification is granted, the CO will send the approved  Application for Temporary Employment Certification  and a Final Determination letter to the employer by means normally assuring next day delivery, including electronic mail, and a copy, if applicable, to the employer's attorney or agent. If the  Application for Temporary Employment Certification  is electronically filed, the employer must sign the certified  Application for Temporary Employment Certification  as directed by the CO. The employer must retain a signed copy of the  Application for Temporary Employment Certification  and the original signed Appendix B of the Application, as required by \u00a7 655.56."], ["20:20:3.0.2.1.27.1.28.42", 20, "Employees' Benefits", "V", "", "655", "PART 655\u2014TEMPORARY EMPLOYMENT OF FOREIGN WORKERS IN THE UNITED STATES", "A", "Subpart A\u2014Labor Certification Process for Temporary Non-Agricultural Employment in the United States (H-2B Workers)", "", "\u00a7 655.53 Denied certification.", "DOL", "", "", "", "If a temporary labor certification is denied, the CO will send the Final Determination letter to the employer by means normally assuring next day delivery, including electronic mail, and a copy, if applicable, to the employer's attorney or agent. The Final Determination letter will:\n\n(a) State the reason(s) certification is denied, citing the relevant regulatory standards;\n\n(b) Offer the employer an opportunity to request administrative review of the denial under \u00a7 655.61; and\n\n(c) State that if the employer does not request administrative review in accordance with \u00a7 655.61, the denial is final and the Department of Labor will not accept any appeal on that  Application for Temporary Employment Certification."], ["20:20:3.0.2.1.27.1.28.43", 20, "Employees' Benefits", "V", "", "655", "PART 655\u2014TEMPORARY EMPLOYMENT OF FOREIGN WORKERS IN THE UNITED STATES", "A", "Subpart A\u2014Labor Certification Process for Temporary Non-Agricultural Employment in the United States (H-2B Workers)", "", "\u00a7 655.54 Partial certification.", "DOL", "", "", "", "The CO may issue a partial certification, reducing either the period of need or the number of H-2B workers or both for certification, based upon information the CO receives during the course of processing the  Application for Temporary Employment Certification.  The number of workers certified will be reduced by one for each U.S. worker who is qualified and who will be available at the time and place needed to perform the services or labor and who has not been rejected for lawful job-related reasons. If a partial labor certification is issued, the CO will amend the  Application for Temporary Employment Certification  and then return it to the employer with a Final Determination letter, with a copy to the employer's attorney or agent, if applicable. The Final Determination letter will:\n\n(a) State the reason(s) why either the period of need and/or the number of H-2B workers requested has been reduced, citing the relevant regulatory standards;\n\n(b) If applicable, address the availability of U.S. workers in the occupation;\n\n(c) Offer the employer an opportunity to request administrative review of the partial certification under \u00a7 655.61; and\n\n(d) State that if the employer does not request administrative review in accordance with \u00a7 655.61, the partial certification is final and the Department of Labor will not accept any appeal on that  Application for Temporary Employment Certification."], ["20:20:3.0.2.1.27.1.28.44", 20, "Employees' Benefits", "V", "", "655", "PART 655\u2014TEMPORARY EMPLOYMENT OF FOREIGN WORKERS IN THE UNITED STATES", "A", "Subpart A\u2014Labor Certification Process for Temporary Non-Agricultural Employment in the United States (H-2B Workers)", "", "\u00a7 655.55 Validity of temporary labor certification.", "DOL", "", "", "", "(a)  Validity period.  A temporary labor certification is valid only for the period as approved on the  Application for Temporary Employment   Certification.  The certification expires on the last day of authorized employment.\n\n(b)  Scope of validity.  A temporary labor certification is valid only for the number of H-2B positions, the area of intended employment, the job classification and specific services or labor to be performed, and the employer specified on the approved  Application for Temporary Employment   Certification,  including any approved modifications. The temporary labor certification may not be transferred from one employer to another unless the employer to which it is transferred is a successor in interest to the employer to which it was issued."], ["20:20:3.0.2.1.27.1.28.45", 20, "Employees' Benefits", "V", "", "655", "PART 655\u2014TEMPORARY EMPLOYMENT OF FOREIGN WORKERS IN THE UNITED STATES", "A", "Subpart A\u2014Labor Certification Process for Temporary Non-Agricultural Employment in the United States (H-2B Workers)", "", "\u00a7 655.56 Document retention requirements of H-2B employers.", "DOL", "", "", "[42 FR 45899, Sept. 13, 1977, as amended at 84 FR 62446, Nov. 15, 2019]", "(a)  Entities required to retain documents.  All employers filing an  Application for Temporary Employment Certification  requesting H-2B workers are required to retain the documents and records proving compliance with 29 CFR part 503 and this subpart, including but not limited to those specified in paragraph (c) of this section.\n\n(b)  Period of required retention.  The employer must retain records and documents for 3 years from the date of certification of the  Application for Temporary Employment Certification,  or from the date of adjudication if the  Application for Temporary Employment Certification  is denied, or 3 years from the day the Department of Labor receives the letter of withdrawal provided in accordance with \u00a7 655.62. For the purposes of this section, records and documents required to be retained in connection with an  H-2B Registration  must be retained in connection with all of the  Applications for Temporary Employment Certification  that are supported by it.\n\n(c)  Documents and records to be retained by all employer applicants.  All employers filing an  H-2B Registration  and an  Application for Temporary Employment Certification  must retain the following documents and records and must provide the documents and records to the Department of Labor and other Federal agencies in the event of an audit or investigation:\n\n(1) Documents and records not previously submitted during the registration process that substantiate temporary need;\n\n(2) Proof of recruitment efforts, as applicable, including:\n\n(i) Job order placement as specified in \u00a7 655.16;\n\n(ii) Contact with former U.S. workers as specified in \u00a7 655.43;\n\n(iii) Contact with bargaining representative(s), or a copy of the posting of the job opportunity, if applicable, as specified in \u00a7 655.45(a) or (b); and\n\n(iv) Additional employer-conducted recruitment efforts as specified in \u00a7 655.46;\n\n(3) Substantiation of the information submitted in the recruitment report prepared in accordance with \u00a7 655.48, such as evidence of nonapplicability of contact with former workers as specified in \u00a7 655.43;\n\n(4) The final recruitment report and any supporting resumes and contact information as specified in \u00a7 655.48;\n\n(5) Records of each worker's earnings, hours offered and worked, location(s) of work performed, and other information as specified in \u00a7 655.20(i);\n\n(6) If appropriate, records of reimbursement of transportation and subsistence costs incurred by the workers, as specified in \u00a7 655.20(j).\n\n(7) Evidence of contact with U.S. workers who applied for the job opportunity in the  Application for Temporary Employment Certification,  including documents demonstrating that any rejections of U.S. workers were for lawful, job-related reasons, as specified in \u00a7 655.20(r);\n\n(8) Evidence of contact with any former U.S. worker in the occupation at the place of employment in the  Application for Temporary Employment Certification,  including documents demonstrating that the U.S. worker had been offered the job opportunity in the  Application for Temporary Employment Certification,  as specified in \u00a7 655.20(w), and that the U.S. worker either refused the job opportunity or was rejected only for lawful, job-related reasons, as specified in \u00a7 655.20(r);\n\n(9) The written contracts with agents or recruiters as specified in \u00a7\u00a7 655.8 and 655.9, and the list of the identities and locations of persons hired by or working for the agent or recruiter and these entities' agents or employees, as specified in \u00a7 655.9;\n\n(10) Written notice provided to and informing OFLC that an H-2B worker or worker in corresponding employment has separated from employment before the end date of employment specified in the  Application for Temporary Employment Certification,  as specified in \u00a7 655.20(y);\n\n(11) The  H-2B Registration,  job order and a copy of the  Application for Temporary Employment Certification  and the original signed Appendix B of the Application. If the  Application for Temporary Employment Certification  and  H-2B Registration  is electronically filed, a printed copy of each adjudicated  Application for Temporary Employment Certification,  including any modifications, amendments or extensions must be signed by the employer as directed by the CO and retained;\n\n(12) The  H-2B Petition,  including all accompanying documents; and\n\n(13) Any collective bargaining agreement(s), individual employment contract(s), or payroll records from the previous year necessary to substantiate any claim that certain incumbent workers are not included in corresponding employment, as specified in \u00a7 655.5.\n\n(d)  Availability of documents for enforcement purposes.  An employer must make available to the Administrator, WHD within 72 hours following a request by the WHD the documents and records required under 29 CFR part 503 and this section so that the Administrator, WHD may copy, transcribe, or inspect them."], ["20:20:3.0.2.1.27.1.28.46", 20, "Employees' Benefits", "V", "", "655", "PART 655\u2014TEMPORARY EMPLOYMENT OF FOREIGN WORKERS IN THE UNITED STATES", "A", "Subpart A\u2014Labor Certification Process for Temporary Non-Agricultural Employment in the United States (H-2B Workers)", "", "\u00a7 655.57 Request for determination based on nonavailability of U.S. workers.", "DOL", "", "", "", "(a)  Standards for requests.  If a temporary labor certification has been partially granted or denied, based on the CO's determination that qualified U.S. workers are available, and, on or after 21 calendar days before the date of need, some or all of those qualified U.S. workers are, in fact no longer available, the employer may request a new temporary labor certification determination from the CO. Prior to making a new determination the CO will promptly ascertain (which may be through the SWA or other sources of information on U.S. worker availability) whether specific qualified replacement U.S. workers are available or can be reasonably expected to be present at the employer's establishment within 72 hours from the date the employer's request was received. The CO will expeditiously, but in no case later than 72 hours after the time a complete request (including the signed statement included in paragraph (b) of this section) is received, make a determination on the request. An employer may appeal a denial of such a determination in accordance with procedures contained in \u00a7 655.61.\n\n(b)  Unavailability of U.S. workers.  The employer's request for a new determination must be made directly to the CO by electronic mail or other appropriate means and must be accompanied by a signed statement confirming the employer's assertion. In addition, unless the employer has provided to the CO notification of abandonment or termination of employment as required by \u00a7 655.20(y), the employer's signed statement must include the name and contact information of each U.S. worker who became unavailable and must supply the reason why the worker has become unavailable.\n\n(c)  Notification of determination.  If the CO determines that U.S. workers have become unavailable and cannot identify sufficient available U.S. workers who are qualified or who are likely to become available, the CO will grant the employer's request for a new determination. However, this does not preclude an employer from submitting subsequent requests for new determinations, if warranted, based on subsequent facts concerning purported nonavailability of U.S. workers or referred workers not being qualified because of lawful job-related reasons."], ["20:20:3.0.2.1.27.1.28.47", 20, "Employees' Benefits", "V", "", "655", "PART 655\u2014TEMPORARY EMPLOYMENT OF FOREIGN WORKERS IN THE UNITED STATES", "A", "Subpart A\u2014Labor Certification Process for Temporary Non-Agricultural Employment in the United States (H-2B Workers)", "", "\u00a7\u00a7 655.58-655.59 [Reserved]", "DOL", "", "", "", ""], ["20:20:3.0.2.1.27.1.29.48", 20, "Employees' Benefits", "V", "", "655", "PART 655\u2014TEMPORARY EMPLOYMENT OF FOREIGN WORKERS IN THE UNITED STATES", "A", "Subpart A\u2014Labor Certification Process for Temporary Non-Agricultural Employment in the United States (H-2B Workers)", "", "\u00a7 655.60 Extensions.", "DOL", "", "", "", "An employer may apply for extensions of the period of employment in the following circumstances. A request for extension must be related to weather conditions or other factors beyond the control of the employer (which may include unforeseeable changes in market conditions), and must be supported in writing, with documentation showing why the extension is needed and that the need could not have been reasonably foreseen by the employer. The CO will notify the employer of the decision in writing. Except in extraordinary circumstances, the CO will not grant an extension where the total work period under that  Application for Temporary Employment Certification  and the authorized extension would exceed 9 months for employers whose temporary need is seasonal, peakload, or intermittent, or 3 years for employers that have a one-time occurrence of temporary need. The employer may appeal a denial of a request for an extension by following the procedures in \u00a7 655.61. The H-2B employer's assurances and obligations under the temporary labor certification will continue to apply during the extended period of employment. The employer must immediately provide to its workers a copy of any approved extension."], ["20:20:3.0.2.1.27.1.29.49", 20, "Employees' Benefits", "V", "", "655", "PART 655\u2014TEMPORARY EMPLOYMENT OF FOREIGN WORKERS IN THE UNITED STATES", "A", "Subpart A\u2014Labor Certification Process for Temporary Non-Agricultural Employment in the United States (H-2B Workers)", "", "\u00a7 655.61 Administrative review.", "DOL", "", "", "", "(a)  Request for review.  Where authorized in this subpart, employers may request an administrative review before the BALCA of a determination by the CO. In such cases, the request for review:\n\n(1) Must be sent to the BALCA, with a copy simultaneously sent to the CO who issued the determination, within 10 business days from the date of determination;\n\n(2) Must clearly identify the particular determination for which review is sought;\n\n(3) Must set forth the particular grounds for the request;\n\n(4) Must include a copy of the CO's determination; and\n\n(5) May contain only legal argument and such evidence as was actually submitted to the CO before the date the CO's determination was issued.\n\n(b)  Appeal file.  Upon the receipt of a request for review, the CO will, within 7 business days, assemble and submit the Appeal File using means to ensure same day or next day delivery, to the BALCA, the employer, and the Associate Solicitor for Employment and Training Legal Services, Office of the Solicitor, U.S. Department of Labor.\n\n(c)  Briefing schedule.  Within 7 business days of receipt of the Appeal File, the counsel for the CO may submit, using means to ensure same day or next day delivery, a brief in support of the CO's decision.\n\n(d)  Assignment.  The Chief ALJ may designate a single member or a three member panel of the BALCA to consider a particular case.\n\n(e)  Review.  The BALCA must review the CO's determination only on the basis of the Appeal File, the request for review, and any legal briefs submitted and must:\n\n(1) Affirm the CO's determination; or\n\n(2) Reverse or modify the CO's determination; or\n\n(3) Remand to the CO for further action.\n\n(f)  Decision.  The BALCA should notify the employer, the CO, and counsel for the CO of its decision within 7 business days of the submission of the CO's brief or 10 business days after receipt of the Appeal File, whichever is later, using means to ensure same day or next day delivery."], ["20:20:3.0.2.1.27.1.29.50", 20, "Employees' Benefits", "V", "", "655", "PART 655\u2014TEMPORARY EMPLOYMENT OF FOREIGN WORKERS IN THE UNITED STATES", "A", "Subpart A\u2014Labor Certification Process for Temporary Non-Agricultural Employment in the United States (H-2B Workers)", "", "\u00a7 655.62 Withdrawal of an Application for Temporary Employment Certification.", "DOL", "", "", "", "Employers may withdraw an  Application for Temporary Employment Certification  after it has been accepted and before it is adjudicated. The employer must request such withdrawal in writing."], ["20:20:3.0.2.1.27.1.29.51", 20, "Employees' Benefits", "V", "", "655", "PART 655\u2014TEMPORARY EMPLOYMENT OF FOREIGN WORKERS IN THE UNITED STATES", "A", "Subpart A\u2014Labor Certification Process for Temporary Non-Agricultural Employment in the United States (H-2B Workers)", "", "\u00a7 655.63 Public disclosure.", "DOL", "", "", "", "The Department of Labor will maintain an electronic file accessible to the public with information on all employers applying for temporary nonagricultural labor certifications. The database will include such information as the number of workers requested, the date filed, the date decided, and the final disposition."], ["20:20:3.0.2.1.27.1.29.52", 20, "Employees' Benefits", "V", "", "655", "PART 655\u2014TEMPORARY EMPLOYMENT OF FOREIGN WORKERS IN THE UNITED STATES", "A", "Subpart A\u2014Labor Certification Process for Temporary Non-Agricultural Employment in the United States (H-2B Workers)", "", "\u00a7 655.64 Special application filing and eligibility provisions for Fiscal Year 2026 under the supplemental cap increase under Section 105 of Division G, Title I of the Further Consolidated Appropriations Act, 2024, Public Law 118-47, as extended by the Continuing Appropriations, Agriculture, Legislative Branch, Military Construction and Veterans Affairs, and Extensions Act, 2026, Public Law 119-37.", "DOL", "", "", "[91 FR 5073, Feb. 3, 2026]", "(a) An employer filing a petition with USCIS under 8 CFR 214.2(h)(6)(xvi) to request H-2B workers to begin employment from January 1, 2026, through September 30, 2026, must meet the following requirements:\n\n(1) The employer must attest on the Form ETA-9142-B-CAA-10 that its business is suffering irreparable harm or will suffer impending irreparable harm (that is, permanent and severe financial loss) without the ability to employ all of the H-2B workers requested on the petition filed pursuant to 8 CFR 214.2(h)(6)(xvi). The employer's attestation must identify the types of evidence the employer is relying on and will retain to meet the irreparable harm standard. The employer must attest that it has created a detailed written statement describing how it is suffering irreparable harm or will suffer impending irreparable harm and describing how such evidence demonstrates irreparable harm. In addition, the employer must attest that it will provide to DHS and/or DOL upon request all of the documentation it relied upon and retained as evidence that it meets the irreparable harm standard, including all of the supporting documentation the employer committed to retain at the time of filing on the employer's attestation form by selecting a checkbox next to the applicable type of documentation in section C, and the written statement describing how such evidence demonstrates irreparable harm\n\n(2) The employer must attest on Form ETA-9142-B-CAA-10 that each of the workers requested and/or instructed to apply for a visa, whether named or unnamed, on a petition filed pursuant to 8 CFR 214.2(h)(6)(xvi)(A)( 1 )( i ) and ( ii ), have been issued an H-2B visa or otherwise granted H-2B status during one of the last three (3) fiscal years (fiscal year 2023, 2024, or 2025), request and obtain a valid temporary labor certification in compliance with the application filing requirements set forth in 20 CFR 655.15.\n\n(3) The employer must attest on Form ETA-9142-B-CAA-10 that the employer will comply with all the assurances, obligations, and conditions of employment set forth on its approved Application for Temporary Employment Certification\n\n(b) An employer filing a petition with USCIS under 8 CFR 214.2(h)(6)(xvi) to request H-2B workers who will begin employment on or after January 1, 2026, through September 30, 2026, must meet the following requirements:\n\n(1) The employer must attest on Form ETA-9142-B-CAA-10 that without the ability to employ all of the H-2B workers requested on the petition filed pursuant to 8 CFR 214.2(h)(6)(xvi), its business is suffering irreparable harm or will suffer impending irreparable harm (that is, permanent and severe financial loss), and that the employer will provide documentary evidence of this fact to DHS or DOL upon request.\n\n(2) The employer must attest on Form ETA-9142-B-CAA-10 that each of the workers requested and/or instructed to apply for a visa, whether named or unnamed, on a petition filed pursuant to 8 CFR 214.2(h)(6)(xvi)(A)( 1 )( i ) and ( ii ), have been issued an H-2B visa or otherwise granted H-2B status during one of the last three (3) fiscal years (Fiscal Years 2023, 2024, or 2025), unless the H-2B worker is counted towards the 18,490 cap described in 8 CFR (h)(6)(xvi)(A)( 1 )( iii ).\n\n(3) The employer must attest on Form ETA-9142-B-CAA-10 that it will comply with all the assurances, obligations, and conditions of employment set forth on its approved  Application for Temporary Employment Certification.\n\n(4) The employer must attest on Form ETA-9142-B-CAA-10 that it will fully cooperate with any audit, investigation, compliance review, evaluation, verification, or inspection conducted by DOL, including an on-site inspection of the employer's facilities, interview of the employer's employees and any other individuals possessing pertinent information, and review of the employer's records related to the compliance with applicable laws and regulations, including but not limited to evidence pertaining to or supporting the eligibility criteria for the FY 2026 supplemental allocations outlined in this paragraph (a) and \u00a7 655.69(a), as a condition for the approval of the H-2B petition. Pursuant to this subpart A at \u00a7 655.73 and 29 CFR 503.25, the employer will not impede, interfere, or refuse to cooperate with an employee of the Secretary who is exercising or attempting to exercise DOL's audit or investigative authority. DOL may consider the failure to respond to and/or comply with an investigation or audit to be a willful misrepresentation of material fact or a substantial failure to meet the terms and conditions of the  H-2B Application for Prevailing Wage Determination,  or  Application for Temporary Employment Certification,  resulting in an adverse agency action on the employer, agent, or attorney, including assessment of a civil money penalty, revocation of the temporary labor certification, and/or program debarment for not less than one year or more than five years from the date of the final agency decision under 20 CFR 655.70, 655.72, 655.73 or 29 CFR part 503. A debarred party will be disqualified from filing any labor certification applications or labor condition applications with the Department of Labor by, or on behalf of, the debarred party for the same period of time set forth in the final debarment decision.\n\n(d) This section expires on October 1, 2026.\n\n(e) The requirements under paragraph (a) of this section are intended to be non-severable from the remainder of this section; in the event that paragraph (a)(1), (2), (3), (4), or (5) of this section is enjoined or held to be invalid by any court of competent jurisdiction, the remainder of this section is also intended to be enjoined or held to be invalid in such jurisdiction, without prejudice to workers already present in the United States under this part, as consistent with law."], ["20:20:3.0.2.1.27.1.29.53", 20, "Employees' Benefits", "V", "", "655", "PART 655\u2014TEMPORARY EMPLOYMENT OF FOREIGN WORKERS IN THE UNITED STATES", "A", "Subpart A\u2014Labor Certification Process for Temporary Non-Agricultural Employment in the United States (H-2B Workers)", "", "\u00a7 655.65 Special document retention provisions for Fiscal Years 2024 through 2027 under the Consolidated Appropriations Act, 2023, as extended by Public Law 118-15.", "DOL", "", "", "[88 FR 80460, Nov. 17, 2023]", "(a) An employer that files a petition with USCIS to employ H-2B workers in fiscal year 2024 under authority of the temporary increase in the numerical limitation under section 303 of Division O, Public Law 117-328, as extended by Public Law 118-15 must maintain for a period of three (3) years from the date of certification, consistent with 20 CFR 655.56 and 29 CFR 503.17, the following:\n\n(1) A copy of the attestation filed pursuant to the regulations in 8 CFR 214.2 governing that temporary increase;\n\n(2) Evidence establishing, at the time of filing the I-129 petition, that the employer's business is suffering irreparable harm or will suffer impending irreparable harm (that is, permanent and severe financial loss) without the ability to employ all of the H-2B workers requested on the petition filed pursuant to 8 CFR 214.2(h)(6)(xiv), including a detailed written statement describing the irreparable harm and how such evidence shows irreparable harm;\n\n(3) Documentary evidence establishing that each of the workers the employer requested and/or instructed to apply for a visa, whether named or unnamed on a petition filed pursuant to 8 CFR 214.2(h)(6)(xiv), have been issued an H-2B visa or otherwise granted H-2B status during one of the last three (3) fiscal years (fiscal year 2021, 2022, or 2023), unless the H-2B worker(s) is a national of El Salvador, Guatemala, Honduras, Haiti, Colombia, Ecuador, or Costa Rica and is counted towards the 20,000 cap described in 8 CFR 214.2(h)(6)(xiv)(A)( 2 ). Alternatively, if applicable, employers must maintain documentary evidence that the workers the employer requested and/or instructed to apply for visas are eligible nationals of El Salvador, Guatemala, Honduras, Haiti, Colombia, Ecuador, or Costa Rica as defined in 8 CFR 214.2(h)(6)(xiv)(A)( 2 ); and\n\n(4) If applicable, proof of recruitment efforts set forth in \u00a7 655.64(a)(4)(i) through (vii) and a recruitment report that meets the requirements set forth in \u00a7 655.48(a)(1) through (4) and (7), and maintained throughout the recruitment period set forth in \u00a7 655.64(a)(4)(viii).\n\n(b) DOL and/or DHS may inspect the documents in paragraphs (a)(1) through (4) of this section upon request.\n\n(c) This section expires on October 1, 2027."], ["20:20:3.0.2.1.27.1.29.54", 20, "Employees' Benefits", "V", "", "655", "PART 655\u2014TEMPORARY EMPLOYMENT OF FOREIGN WORKERS IN THE UNITED STATES", "A", "Subpart A\u2014Labor Certification Process for Temporary Non-Agricultural Employment in the United States (H-2B Workers)", "", "\u00a7 655.67 Special document retention provisions for Fiscal Years 2023 through 2026 under the Consolidated Appropriations Act, 2022, as extended by Public Law 117-180.", "DOL", "", "", "[87 FR 76878, Dec. 15, 2022]", "(a) An employer that files a petition with USCIS to employ H-2B workers in fiscal year 2023 under authority of the temporary increase in the numerical limitation under section 204 of Division O, Public Law 117-103 must maintain for a period of three (3) years from the date of certification, consistent with 20 CFR 655.56 and 29 CFR 503.17, the following: (1) A copy of the attestation filed pursuant to the regulations in 8 CFR 214.2 governing that temporary increase;\n\n(2) Evidence establishing, at the time of filing the I-129 petition, that the employer's business is suffering irreparable harm or will suffer impending irreparable harm (that is, permanent and severe financial loss) without the ability to employ all of the H-2B workers requested on the petition filed pursuant to 8 CFR 214.2(h)(6)(xiii), including a detailed written statement describing the irreparable harm and how such evidence shows irreparable harm;\n\n(3) Documentary evidence establishing that each of the workers the employer requested and/or instructed to apply for a visa, whether named or unnamed on a petition filed pursuant to 8 CFR 214.2(h)(6)(xiii), have been issued an H-2B visa or otherwise granted H-2B status during one of the last three (3) fiscal years (fiscal year 2020, 2021, or 2022), unless the H-2B worker(s) is a national of El Salvador, Guatemala, Honduras, or Haiti and is counted towards the20,000 cap described in 8 CFR 214.2(h)(6)(xiii)(A)( 2 ). Alternatively, if applicable, employers must maintain documentary evidence that the workers the employer requested and/or instructed to apply for visas are eligible nationals of El Salvador, Guatemala, Honduras, or Haiti as defined in 8 CFR 214.2(h)(6)(xiii)(A)( 2 ); and\n\n(4) If applicable, proof of recruitment efforts set forth in '4\u00a7 655.65(a)(5)(i) through (viii) and a recruitment report that meets the requirements set forth in \u00a7 655.48(a)(1) through (4) and (7), and maintained throughout the recruitment period set forth in \u00a7 655.65(a)(5)(ix).\n\n(b) DOL or DHS may inspect the documents in paragraphs (a)(1) through (4) of this section upon request.\n\n(c) This section expires on October 1, 2026."], ["20:20:3.0.2.1.27.1.29.55", 20, "Employees' Benefits", "V", "", "655", "PART 655\u2014TEMPORARY EMPLOYMENT OF FOREIGN WORKERS IN THE UNITED STATES", "A", "Subpart A\u2014Labor Certification Process for Temporary Non-Agricultural Employment in the United States (H-2B Workers)", "", "\u00a7 655.68 Special document retention provisions for Fiscal Years 2025 through 2028 under the Further Consolidated Appropriations Act, 2024, as extended by Public Law 118-83.", "DOL", "", "", "[89 FR 95685, Dec. 2, 2024]", "(a) An employer that files a petition with USCIS to employ H-2B workers in fiscal year 2025 under authority of the temporary increase in the numerical limitation under section 105 of Division G, Public Law 118-47, as extended by Public Law 118-83 must maintain for a period of three (3) years from the date of certification, consistent with 20 CFR 655.56 and 29 CFR 503.17, the following:\n\n(1) A copy of the attestation filed pursuant to the regulations in 8 CFR 214.2 governing that temporary increase;\n\n(2) Evidence establishing, at the time of filing the I-129 petition and as attested to in the attestation form, that the employer's business is suffering irreparable harm or will suffer impending irreparable harm (that is, permanent and severe financial loss) without the ability to employ all of the H-2B workers requested on the petition filed pursuant to 8 CFR 214.2(h)(6)(xv), including a detailed written statement describing the irreparable harm and how such evidence shows irreparable harm;\n\n(3) Documentary evidence establishing that each of the workers the employer requested and/or instructed to apply for a visa, whether named or unnamed on a petition filed pursuant to 8 CFR 214.2(h)(6)(xv), have been issued an H-2B visa or otherwise granted H-2B status during one of the last three (3) fiscal years (fiscal year 2022, 2023, or 2024), unless the H-2B worker(s) is a national of El Salvador, Guatemala, Honduras, Haiti, Colombia, Ecuador, or Costa Rica and is counted towards the 20,000 cap described in 8 CFR 214.2(h)(6)(xv)(A)( 2 ). Alternatively, if applicable, employers must maintain documentary evidence that the workers the employer requested and/or instructed to apply for visas are eligible nationals of El Salvador, Guatemala, Honduras, Haiti, Colombia, Ecuador, or Costa Rica as defined in 8 CFR 214.2(h)(6)(xv)(A)( 2 ); and\n\n(4) If applicable, proof of recruitment efforts set forth in \u00a7 655.64(a)(4)(i) through (vii) and a recruitment report that meets the requirements set forth in \u00a7 655.48(a)(1) through (4) and (7), and maintained throughout the recruitment period set forth in \u00a7 655.64(a)(4)(viii).\n\n(b) DOL and/or DHS may inspect the documents in paragraphs (a)(1) through (4) of this section upon request.\n\n(c) This section expires on October 1, 2028."], ["20:20:3.0.2.1.27.1.29.56", 20, "Employees' Benefits", "V", "", "655", "PART 655\u2014TEMPORARY EMPLOYMENT OF FOREIGN WORKERS IN THE UNITED STATES", "A", "Subpart A\u2014Labor Certification Process for Temporary Non-Agricultural Employment in the United States (H-2B Workers)", "", "\u00a7 655.69 Special document retention provisions for Fiscal Years 2026 through 2029 under the Continuing Appropriations, Agriculture, Legislative Branch, Military Construction and Veterans Affairs, and Extensions Act, 2026, Public Law 119-37.", "DOL", "", "", "[91 FR 5074, Feb. 3, 2026]", "(a) An employer who files a petition with USCIS to employ H-2B workers in fiscal year 2026 under authority of the temporary increase in the numerical limitation under section 101 of Division A, Public Law 119-37 must maintain for a period of three (3) years from the date of certification, consistent with 20 CFR 655.56 and 29 CFR 503.17, the following:\n\n(1) A copy of the attestation filed pursuant to regulations in 8 CFR 214.2 governing that temporary increase;\n\n(2) Evidence establishing, at the time of filing the I-129 petition and as attested to in the attestation form, that the employer's business is suffering irreparable harm or will suffer impending irreparable harm (that is, permanent and severe financial loss) without the ability to employ all of the H-2B workers requested on the petition filed pursuant to 8 CFR 214.2(h)(6)(xvi), including a detailed written statement describing the irreparable harm and how such evidence shows irreparable harm;\n\n(3) Documentary evidence establishing that each of the workers the employer requested and/or instructed to apply for a visa, whether named or unnamed on a petition filed pursuant to 8 CFR 214.2(h)(6)(xvi), have been issued an H-2B visa or otherwise granted H-2B status during one of the last three (3) fiscal years (fiscal year 2023, 2024, or 2025), unless the H-2B worker is counted towards the 18,490 cap described in section (h)(6)(xvi)(A)( 1 )( iii ); and\n\n(b) DOL or DHS may inspect these documents upon request.\n\n(c) This section expires on October 1, 2029."], ["20:20:3.0.2.1.27.1.30.57", 20, "Employees' Benefits", "V", "", "655", "PART 655\u2014TEMPORARY EMPLOYMENT OF FOREIGN WORKERS IN THE UNITED STATES", "A", "Subpart A\u2014Labor Certification Process for Temporary Non-Agricultural Employment in the United States (H-2B Workers)", "", "\u00a7 655.70 Audits.", "DOL", "", "", "", "The CO may conduct audits of adjudicated temporary employment certification applications.\n\n(a)  Discretion.  The CO has the sole discretion to choose the applications selected for audit.\n\n(b)  Audit letter.  Where an application is selected for audit, the CO will send an audit letter to the employer and a copy, if appropriate, to the employer's attorney or agent. The audit letter will:\n\n(1) Specify the documentation that must be submitted by the employer;\n\n(2) Specify a date, no more than 30 calendar days from the date the audit letter is issued, by which the required documentation must be sent to the CO; and\n\n(3) Advise that failure to fully comply with the audit process may result:\n\n(i) In the requirement that the employer undergo the assisted recruitment procedures in \u00a7 655.71 in future filings of H-2B temporary employment certification applications for a period of up to 2 years, or\n\n(ii) In a revocation of the certification and/or debarment from the H-2B program and any other foreign labor certification program administered by the Department Labor.\n\n(c)  Supplemental information request.  During the course of the audit examination, the CO may request supplemental information and/or documentation from the employer in order to complete the audit. If circumstances warrant, the CO can issue one or more requests for supplemental information.\n\n(d)  Potential referrals.  In addition to measures in this subpart, the CO may decide to provide the audit findings and underlying documentation to DHS, WHD, or other appropriate enforcement agencies. The CO may refer any findings that an employer discouraged a qualified U.S. worker from applying, or failed to hire, discharged, or otherwise discriminated against a qualified U.S. worker to the Department of Justice, Civil Rights Division, Office of Special Counsel for Unfair Immigration Related Employment Practices."], ["20:20:3.0.2.1.27.1.30.58", 20, "Employees' Benefits", "V", "", "655", "PART 655\u2014TEMPORARY EMPLOYMENT OF FOREIGN WORKERS IN THE UNITED STATES", "A", "Subpart A\u2014Labor Certification Process for Temporary Non-Agricultural Employment in the United States (H-2B Workers)", "", "\u00a7 655.71 CO-ordered assisted recruitment.", "DOL", "", "", "[42 FR 45899, Sept. 13, 1977, as amended at 84 FR 62447, Nov. 15, 2019]", "(a)  Requirement of assisted recruitment.  If, as a result of audit or otherwise, the CO determines that a violation has occurred that does not warrant debarment, the CO may require the employer to engage in assisted recruitment for a defined period of time for any future  Application for Temporary Employment Certification.\n\n(b)  Notification of assisted recruitment.  The CO will notify the employer (and its attorney or agent, if applicable) in writing of the assisted recruitment that will be required of the employer for a period of up to 2 years from the date the notice is issued. The notification will state the reasons for the imposition of the additional requirements, state that the employer's agreement to accept the conditions will constitute their inclusion as bona fide conditions and terms of an application for temporary employment certification, and offer the employer an opportunity to request an administrative review. If administrative review is requested, the procedures in \u00a7 655.61 apply.\n\n(c)  Assisted recruitment.  The assisted recruitment process will be in addition to any recruitment required of the employer by \u00a7\u00a7 655.41 through 655.46 and may consist of, but is not limited to, one or more of the following:\n\n(1) Requiring the employer to submit a draft advertisement to the CO for review and approval at the time of filing the  Application for Temporary Employment Certification;\n\n(2) Designating the sources where the employer must recruit for U.S. workers and directing the employer to place the advertisement(s) in such sources;\n\n(3) Extending the length of the placement of the advertisement and/or job order;\n\n(4) Requiring the employer to notify the CO and the SWA in writing when the advertisement(s) are placed;\n\n(5) Requiring an employer to perform any additional assisted recruitment directed by the CO;\n\n(6) Requiring the employer to provide proof of the publication of all advertisements as directed by the CO, in addition to providing a copy of the job order;\n\n(7) Requiring the employer to provide proof of all SWA referrals made in response to the job order;\n\n(8) Requiring the employer to submit any proof of contact with all referrals and past U.S. workers; and/or\n\n(9) Requiring the employer to provide any additional documentation verifying it conducted the assisted recruitment as directed by the CO.\n\n(d)  Failure to comply.  If an employer materially fails to comply with requirements ordered by the CO under this section, the certification will be denied and the employer and/or its attorney or agent may be debarred under \u00a7 655.73."], ["20:20:3.0.2.1.27.1.30.59", 20, "Employees' Benefits", "V", "", "655", "PART 655\u2014TEMPORARY EMPLOYMENT OF FOREIGN WORKERS IN THE UNITED STATES", "A", "Subpart A\u2014Labor Certification Process for Temporary Non-Agricultural Employment in the United States (H-2B Workers)", "", "\u00a7 655.72 Revocation.", "DOL", "", "", "", "(a)  Basis for DOL revocation.  The Administrator, OFLC may revoke a temporary labor certification approved under this subpart, if the Administrator, OFLC finds:\n\n(1) The issuance of the temporary labor certification was not justified due to fraud or willful misrepresentation of a material fact in the application process, as defined in \u00a7 655.73(d);\n\n(2) The employer substantially failed to comply with any of the terms or conditions of the approved temporary labor certification. A substantial failure is a willful failure to comply that constitutes a significant deviation from the terms and conditions of the approved certification and is further defined in \u00a7 655.73(d) and (e);\n\n(3) The employer failed to cooperate with a DOL investigation or with a DOL official performing an investigation, inspection, audit (under \u00a7 655.73), or law enforcement function under 29 CFR part 503 or this subpart; or\n\n(4) The employer failed to comply with one or more sanctions or remedies imposed by WHD, or with one or more decisions or orders of the Secretary with the respect to the H-2B program.\n\n(b)  DOL procedures for revocation \u2014(1)  Notice of Revocation.  If the Administrator, OFLC makes a determination to revoke an employer's temporary labor certification, the Administrator, OFLC will send to the employer (and its attorney or agent, if applicable) a Notice of Revocation. The notice will contain a detailed statement of the grounds for the revocation and inform the employer of its right to submit rebuttal evidence or to appeal. If the employer does not file rebuttal evidence or an appeal within 10 business days from the date the Notice of Revocation is issued, the notice is the final agency action and will take effect immediately at the end of the 10-day period.\n\n(2)  Rebuttal.  If the employer timely submits rebuttal evidence, the Administrator, OFLC will inform the employer of the final determination on the revocation within 10 business days of receiving the rebuttal evidence. If the Administrator, OFLC determines that the certification should be revoked, the Administrator, OFLC will inform the employer of its right to appeal according to the procedures of \u00a7 655.61. If the employer does not appeal the final determination, it will become the final agency action.\n\n(3)  Appeal.  An employer may appeal a Notice of Revocation, or a final determination of the Administrator, OFLC after the review of rebuttal evidence, according to the appeal procedures of \u00a7 655.61. The ALJ's decision is the final agency action.\n\n(4)  Stay.  The timely filing of rebuttal evidence or an administrative appeal will stay the revocation pending the outcome of those proceedings.\n\n(5)  Decision.  If the temporary labor certification is revoked, the Administrator, OFLC will send a copy of the final agency action to DHS and the Department of State.\n\n(c)  Employer's obligations in the event of revocation.  If an employer's temporary labor certification is revoked, the employer is responsible for:\n\n(1) Reimbursement of actual inbound transportation and other expenses;\n\n(2) The workers' outbound transportation expenses;\n\n(3) Payment to the workers of the amount due under the three-fourths guarantee; and\n\n(4) Any other wages, benefits, and working conditions due or owing to the workers under this subpart."], ["20:20:3.0.2.1.27.1.30.60", 20, "Employees' Benefits", "V", "", "655", "PART 655\u2014TEMPORARY EMPLOYMENT OF FOREIGN WORKERS IN THE UNITED STATES", "A", "Subpart A\u2014Labor Certification Process for Temporary Non-Agricultural Employment in the United States (H-2B Workers)", "", "\u00a7 655.73 Debarment.", "DOL", "", "", "", "a)  Debarment of an employer.  The Administrator, OFLC may not issue future labor certifications under this subpart to an employer or any successor in interest to that employer, subject to the time limits set forth in paragraph (c) of this section, if the Administrator, OFLC finds that the employer committed the following violations:\n\n(1) Willful misrepresentation of a material fact in its  H-2B Registration, Application for Prevailing Wage Determination,   Application for Temporary Employment Certification,  or  H-2B Petition;\n\n(2) Substantial failure to meet any of the terms and conditions of its  H-2B Registration, Application for Prevailing Wage Determination,   Application for Temporary Employment Certification,  or  H-2B Petition.  A substantial failure is a willful failure to comply that constitutes a significant deviation from the terms and conditions of such documents; or\n\n(3) Willful misrepresentation of a material fact to the DOS during the visa application process.\n\n(b)  Debarment of an agent or attorney.  If the Administrator, OFLC finds, under this section, that an attorney or agent committed a violation as described in paragraphs (a)(1) through (3) of this section or participated in an employer's violation, the Administrator, OFLC may not issue future labor certifications to an employer represented by such agent or attorney, subject to the time limits set forth in paragraph (c) of this section.\n\n(c)  Period of debarment.  Debarment under this subpart may not be for less than 1 year or more than 5 years from the date of the final agency decision.\n\n(d)  Determining whether a violation is willful.  A willful misrepresentation of a material fact or a willful failure to meet the required terms and conditions occurs when the employer, attorney, or agent knows a statement is false or that the conduct is in violation, or shows reckless disregard for the truthfulness of its representation or for whether its conduct satisfies the required conditions.\n\n(e)  Determining whether a violation is significant.  In determining whether a violation is a significant deviation from the terms and conditions of the  H-2B Registration, Application for Prevailing Wage Determination,   Application for Temporary Employment Certification,  or  H-2B Petition,  the factors that the Administrator, OFLC may consider include, but are not limited to, the following:\n\n(1) Previous history of violation(s) under the H-2B program;\n\n(2) The number of H-2B workers, workers in corresponding employment, or improperly rejected U.S. applicants who were and/or are affected by the violation(s);\n\n(3) The gravity of the violation(s);\n\n(4) The extent to which the violator achieved a financial gain due to the violation(s), or the potential financial loss or potential injury to the worker(s); and\n\n(5) Whether U.S. workers have been harmed by the violation.\n\n(f)  Violations.  Where the standards set forth in paragraphs (d) and (e) in this section are met, debarrable violations would include but would not be limited to one or more acts of commission or omission which involve:\n\n(1) Failure to pay or provide the required wages, benefits or working conditions to the employer's H-2B workers and/or workers in corresponding employment;\n\n(2) Failure, except for lawful, job-related reasons, to offer employment to qualified U.S. workers who applied for the job opportunity for which certification was sought;\n\n(3) Failure to comply with the employer's obligations to recruit U.S. workers;\n\n(4) Improper layoff or displacement of U.S. workers or workers in corresponding employment;\n\n(5) Failure to comply with one or more sanctions or remedies imposed by the Administrator, WHD for violation(s) of obligations under the job order or other H-2B obligations, or with one or more decisions or orders of the Secretary or a court under this subpart or 29 CFR part 503;\n\n(6) Failure to comply with the Notice of Deficiency process under this subpart;\n\n(7) Failure to comply with the assisted recruitment process under this subpart;\n\n(8) Impeding an investigation of an employer under 29 CFR part 503 or an audit under this subpart;\n\n(9) Employing an H-2B worker outside the area of intended employment, in an activity/activities not listed in the job order, or outside the validity period of employment of the job order, including any approved extension thereof;\n\n(10) A violation of the requirements of \u00a7 655.20(o) or (p);\n\n(11) A violation of any of the provisions listed in \u00a7 655.20(r);\n\n(12) Any other act showing such flagrant disregard for the law that future compliance with program requirements cannot reasonably be expected;\n\n(13) Fraud involving the  H-2B Registration, Application for Prevailing Wage Determination,   Application for Temporary Employment Certification,  or the  H-2B Petition;  or\n\n(14) A material misrepresentation of fact during the registration or application process.\n\n(g)  Debarment procedure \u2014(1)  Notice of Debarment.  If the Administrator, OFLC makes a determination to debar an employer, attorney, or agent, the Administrator, OFLC will send the party a Notice of Debarment. The Notice will state the reason for the debarment finding, including a detailed explanation of the grounds for and the duration of the debarment and inform the party subject to the notice of its right to submit rebuttal evidence or to request a debarment hearing. If the party does not file rebuttal evidence or request a hearing within 30 calendar days of the date of the Notice of Debarment, the notice is the final agency action and the debarment will take effect at the end of the 30-day period. The timely filing of an rebuttal evidence or a request for a hearing stays the debarment pending the outcome of the appeal as provided in paragraphs (g)(2) through (6) of this section.\n\n(2)  Rebuttal.  The party who received the Notice of Debarment may choose to submit evidence to rebut the grounds stated in the notice within 30 calendar days of the date the notice is issued. If rebuttal evidence is timely filed, the Administrator, OFLC will issue a final determination on the debarment within 30 calendar days of receiving the rebuttal evidence. If the Administrator, OFLC determines that the party should be debarred, the Administrator, OFLC will inform the party of its right to request a debarment hearing according to the procedures in this section. The party must request a hearing within 30 calendar days after the date of the Administrator, OFLC's final determination, or the Administrator OFLC's determination will be the final agency order and the debarment will take effect at the end of the 30-day period.\n\n(3)  Hearing.  The recipient of a Notice of Debarment seeking to challenge the debarment must request a debarment hearing within 30 calendar days of the date of a Notice of Debarment or the date of a final determination of the Administrator, OFLC after review of rebuttal evidence submitted under paragraph (g)(2) of this section. To obtain a debarment hearing, the recipient must, within 30 days of the date of the Notice or the final determination, file a written request with the Chief ALJ, United States Department of Labor, 800 K Street NW., Suite 400-N, Washington, DC 20001-8002, and simultaneously serve a copy on the Administrator, OFLC. The debarment will take effect 30 calendar days from the date the Notice of Debarment or final determination is issued, unless a request for review is timely filed. Within 10 business days of receipt of the request for a hearing, the Administrator, OFLC will send a certified copy of the ETA case file to the Chief ALJ by means normally assuring next day delivery. The Chief ALJ will immediately assign an ALJ to conduct the hearing. The procedures in 29 CFR part 18 apply to such hearings, except that the request for a hearing will not be considered to be a complaint to which an answer is required.\n\n(4)  Decision.  After the hearing, the ALJ must affirm, reverse, or modify the Administrator, OFLC's determination. The ALJ will prepare the decision within 60 calendar days after completion of the hearing and closing of the record. The ALJ's decision will be provided to the parties to the debarment hearing by means normally assuring next day delivery. The ALJ's decision is the final agency action, unless either party, within 30 calendar days of the ALJ's decision, seeks review of the decision with the Administrative Review Board (ARB).\n\n(5)  Review by the ARB.  (i) Any party wishing review of the decision of an ALJ must, within 30 calendar days of the decision of the ALJ, petition the ARB to review the decision. Copies of the petition must be served on all parties and on the ALJ. The ARB will decide whether to accept the petition within 30 calendar days of receipt. If the ARB declines to accept the petition, or if the ARB does not issue a notice accepting a petition within 30 calendar days after the receipt of a timely filing of the petition, the decision of the ALJ is the final agency action. If a petition for review is accepted, the decision of the ALJ will be stayed unless and until the ARB issues an order affirming the decision. The ARB must serve notice of its decision to accept or not to accept the petition upon the ALJ and upon all parties to the proceeding.\n\n(ii) Upon receipt of the ARB's notice to accept the petition, the Office of Administrative Law Judges will promptly forward a copy of the complete hearing record to the ARB.\n\n(iii) Where the ARB has determined to review the decision and order, the ARB will notify each party of the issue(s) raised, the form in which submissions must be made (e.g., briefs or oral argument), and the time within which the presentation must be submitted.\n\n(6)  ARB Decision.  The ARB's final decision must be issued within 90 calendar days from the notice granting the petition and served upon all parties and the ALJ.\n\n(h)  Concurrent debarment jurisdiction.  OFLC and the WHD have concurrent jurisdiction to debar under this section or under 29 CFR 503.24. When considering debarment, OFLC and the WHD will coordinate their activities. A specific violation for which debarment is imposed will be cited in a single debarment proceeding. Copies of final debarment decisions will be forwarded to DHS and DOS promptly.\n\n(i)  Debarment from other foreign labor programs.  Upon debarment under this subpart or 29 CFR 503.24, the debarred party will be disqualified from filing any labor certification applications or labor condition applications with the Department of Labor by, or on behalf of, the debarred party for the same period of time set forth in the final debarment decision."], ["20:20:3.0.2.1.27.1.30.61", 20, "Employees' Benefits", "V", "", "655", "PART 655\u2014TEMPORARY EMPLOYMENT OF FOREIGN WORKERS IN THE UNITED STATES", "A", "Subpart A\u2014Labor Certification Process for Temporary Non-Agricultural Employment in the United States (H-2B Workers)", "", "\u00a7\u00a7 655.74-655.99 [Reserved]", "DOL", "", "", "", ""], ["20:20:3.0.2.1.27.10.41.1", 20, "Employees' Benefits", "V", "", "655", "PART 655\u2014TEMPORARY EMPLOYMENT OF FOREIGN WORKERS IN THE UNITED STATES", "L", "Subpart L\u2014What Requirements Must a Facility Meet to Employ H-1C Nonimmigrant Workers as Registered Nurses?", "", "\u00a7 655.1100 What are the purposes, procedures and applicability of these regulations in subparts L and M of this part?", "DOL", "", "", "", "(a)  Purpose.  The Immigration and Nationality Act (INA), as amended by the Nursing Relief for Disadvantaged Areas Act of 1999, establishes the H-1C nonimmigrant visa program to provide qualified nursing professionals for narrowly defined health professional shortage areas. Subpart L of this part sets forth the procedure by which facilities seeking to use nonimmigrant registered nurses must submit attestations to the Department of Labor demonstrating their eligibility to participate as facilities, their wages and working conditions for nurses, their efforts to recruit and retain United States workers as registered nurses, the absence of a strike/lockout or layoff, notification of nurses, and the numbers of and worksites where H-1C nurses will be employed. Subpart M of this part sets forth complaint, investigation, and penalty provisions with respect to such attestations.\n\n(b)  Procedure.  The INA establishes a procedure for facilities to follow in seeking admission to the United States for, or use of, nonimmigrant nurses under H-1C visas. The procedure is designed to reduce reliance on nonimmigrant nurses in the future, and calls for the facility to attest, and be able to demonstrate in the course of an investigation, that it is taking timely and significant steps to develop, recruit, and retain U.S. nurses. Subparts L and M of this part set forth the specific requirements of those procedures.\n\n(c)  Applicability.  (1) Subparts L and M of this part apply to all facilities that seek the temporary admission or use of H-1C nonimmigrants as registered nurses.\n\n(2) During the period that the provisions of Appendix 1603.D.4 of Annex 1603 of the North American Free Trade Agreement (NAFTA) apply, subparts L and M of this part shall apply to the entry of a nonimmigrant who is a citizen of Mexico under the provisions of section D of Annex 1603 of NAFTA. Therefore, the references in this part to \u201cH-1C nurse\u201d apply to such nonimmigrants who are classified by USCIS as \u201cTN.\u201d"], ["20:20:3.0.2.1.27.10.41.10", 20, "Employees' Benefits", "V", "", "655", "PART 655\u2014TEMPORARY EMPLOYMENT OF FOREIGN WORKERS IN THE UNITED STATES", "L", "Subpart L\u2014What Requirements Must a Facility Meet to Employ H-1C Nonimmigrant Workers as Registered Nurses?", "", "\u00a7 655.1116 Element VI\u2014What notification must facilities provide to registered nurses?", "DOL", "", "", "[65 FR 51149, Aug. 22, 2000, as amended at 75 FR 10405, Mar. 5, 2010]", "(a) The sixth attestation element requires the facility to attest that at the time of filing of the petition for registered nurses under section 101(a)(15)(H)(i)(c) of the INA, notice of filing has been provided by the facility to the bargaining representative of the registered nurses at the facility or, where there is no such bargaining representative, notice of the filing has been provided to registered nurses at the facility through posting in conspicuous locations, and individual copies of the Attestation have been provided to registered nurses employed at the facility.\n\n(b)  Notification of bargaining representative.  (1) At a time no later than the date the attestation is transmitted to ETA, on ETA Form 9081, Attestation for H-1C Nonimmigrant Nurses, the facility must notify the bargaining representative (if any) for nurses at the facility that the attestation is being submitted. This notice may be either a copy of the attestation (ETA Form 9081) or a document stating that the attestations are available for review by interested parties at the facility (explaining how they can be inspected or obtained) and at the Office of Foreign Labor Certification, Employment and Training Administration, Department of Labor, 200 Constitution Avenue, NW., Room C-4312, Washington, DC 20210. The notice must include the following statement: \u201cComplaints alleging misrepresentation of material facts in the attestation or failure to comply with the terms of the attestation may be filed with any office of the Wage and Hour Division, United States Department of Labor.\u201d\n\n(2) No later than the date the facility transmits a petition for H-1C nurses to USCIS, the facility must notify the bargaining representative (if any) for nurses at the facility that the H-1C petition is being submitted. This notice may be either a copy of petition, or a document stating that the attestations and H-1C petition are available for review by interested parties at the facility (explaining how they can be inspected or obtained) and at the Office of Foreign Labor Certification, Employment and Training Administration, Department of Labor, 200 Constitution Avenue, NW., Room C-4312, Washington, DC 20210. The notice must include the following statement: \u201cComplaints alleging misrepresentation of material facts in the attestation or failure to comply with the terms of the attestation may be filed with any office of the Wage and Hour Division, United States Department of Labor.\u201d\n\n(c)  Posting notice.  If there is no bargaining representative for nurses at the facility, the facility must post a written notice in two or more conspicuous locations at the facility. Such notices shall be clearly visible and unobstructed while posted, and shall be posted in conspicuous places where nurses can easily read the notices on their way to or from their duties. Appropriate locations for posting hard copy notices include locations in the immediate proximity of mandatory Fair Labor Standards Act wage and hour notices and Occupational Safety and Health Act occupational safety and health notices. In the alternative, the facility may use electronic means it ordinarily uses to communicate with its nurses about job vacancies or promotion opportunities, including through its \u201chome page\u201d or \u201celectronic bulletin board,\u201d provided that the nurses have, as a practical matter, direct access to those sites; or, where the nurses have individual e-mail accounts, the facility may use e-mail. This must be accomplished no later than the date when the facility transmits an Attestation to ETA and the date when the facility transmits an H-1C petition to the USCIS. The notice may be either a copy of the Attestation or petition, or a document stating that the Attestation or petition has been filed and is available for review by interested parties at the facility (explaining how these documents can be inspected or obtained) and at the national office of ETA. The notice shall include the following statement: \u201cComplaints alleging misrepresentation of material facts in the Attestation 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.\u201d Unless it is sent to an individual e-mail address, the Attestation notice shall remain posted during the validity period of the Attestation; the petition notice shall remain posted for ten days. Copies of all notices shall be available for examination in the facility's public access file.\n\n(d)  Individual notice to RNs.  In addition to notifying the bargaining representative or posting notice as described in paragraphs (b) and (c) of this section, the facility must provide a copy of the Attestation, within 30 days of the date of filing, to every registered nurse employed at the facility. This requirement may be satisfied by electronic means if an individual e-mail message, with the Attestation as an attachment, is sent to every RN at the facility. This notification includes not only the RNs employed by the facility, but also includes any RN who is providing service at the facility as an employee of another entity, such as a nursing contractor.\n\n(e) Where RNs lack practical computer access, a hard copy must be posted in accordance with paragraph (c) of this section and a hard copy of the Attestation delivered, within 30 days of the date of filing, to every RN employed at the facility in accordance with paragraph (d) of this section.\n\n(f) The facility must maintain, in its public access file, copies of the notices required by this section. The facility must make such documentation available to the Administrator in the event of an enforcement action pursuant to subpart M of this part."], ["20:20:3.0.2.1.27.10.41.11", 20, "Employees' Benefits", "V", "", "655", "PART 655\u2014TEMPORARY EMPLOYMENT OF FOREIGN WORKERS IN THE UNITED STATES", "L", "Subpart L\u2014What Requirements Must a Facility Meet to Employ H-1C Nonimmigrant Workers as Registered Nurses?", "", "\u00a7 655.1117 Element VII\u2014What are the limitations as to the number of H-1C nonimmigrants that a facility may employ?", "DOL", "", "", "", "(a) The seventh attestation element requires that the facility attest that it will not, at any time, employ a number of H-1C nurses that exceeds 33% of the total number of registered nurses employed by the facility. The calculation of the population of nurses for purposes of this attestation includes only nurses who have an employer-employee relationship with the facility (as defined in \u00a7 655.1102).\n\n(b) The facility must maintain documentation (e.g., payroll records, copies of H-1C petitions) that demonstrates its compliance with this attestation. The facility must make such documentation available to the Administrator in the event of an enforcement action pursuant to subpart M of this part."], ["20:20:3.0.2.1.27.10.41.12", 20, "Employees' Benefits", "V", "", "655", "PART 655\u2014TEMPORARY EMPLOYMENT OF FOREIGN WORKERS IN THE UNITED STATES", "L", "Subpart L\u2014What Requirements Must a Facility Meet to Employ H-1C Nonimmigrant Workers as Registered Nurses?", "", "\u00a7 655.1118 Element VIII\u2014What are the limitations as to where the H-1C nonimmigrant may be employed?", "DOL", "", "", "", "The eighth attestation element requires that the facility attest that it will not authorize any H-1C nurse to perform services at any worksite not controlled by the facility or transfer any H-1C nurse from one worksite to another worksite, even if all of the worksites are controlled by the facility."], ["20:20:3.0.2.1.27.10.41.13", 20, "Employees' Benefits", "V", "", "655", "PART 655\u2014TEMPORARY EMPLOYMENT OF FOREIGN WORKERS IN THE UNITED STATES", "L", "Subpart L\u2014What Requirements Must a Facility Meet to Employ H-1C Nonimmigrant Workers as Registered Nurses?", "", "\u00a7 655.1130 What criteria does the Department use to determine whether or not to certify an Attestation?", "DOL", "", "", "[65 FR 51149, Aug. 22, 2000, as amended at 75 FR 10406, Mar. 5, 2010]", "(a) An Attestation form which is complete and has no obvious inaccuracies will be accepted for filing by ETA without substantive review,  except that  ETA will conduct a substantive review on particular attestation elements in the following limited circumstances:\n\n(1) Determination of whether the hospital submitting the Attestation is a qualifying \u201cfacility\u201d ( see  \u00a7 655.1110(c)(ii), regarding the documentation required, and the process for review);\n\n(2) Where the facility attests that it is taking or will take a \u201ctimely and significant step\u201d other than those identified on the Form ETA 9081 ( see  \u00a7 655.1114(b)(2)(v), regarding the documentation required, and the process for review);\n\n(3) Where the facility asserts that taking a second \u201ctimely and significant step\u201d is unreasonable ( see  \u00a7 655.1114(c), regarding the documentation required, and the process for review).\n\n(b) The certifying officer will act on the Attestation in a timely manner. If the officer does not contact the facility for information or make any determination within 30 days of receiving the Attestation, the Attestation shall be accepted for filing. If ETA receives information contesting the truth of the statements attested to or compliance with an Attestation prior to the determination to accept or reject the Attestation for filing, such information shall not be made part of ETA's administrative record on the Attestation but shall be referred to the Administrator to be processed as a complaint pursuant to subpart M of this part if such Attestation is accepted by ETA for filing.\n\n(c) When the facility submits the attestation to ETA and provides the notice required by \u00a7 655.1116, the attestation must be made available for public examination at the facility. When ETA accepts the attestation for filing, the attestation will be made available, upon request, for public examination in the Office of Foreign Labor Certification, Employment Training Administration, U.S. Department of Labor, Room C-4312, 200 Constitution Avenue, NW., Washington, DC 20210.\n\n(d)  Standards for acceptance of Attestation.  ETA will accept the Attestation for filing under the following standards:\n\n(1) The Attestation is complete and contains no obvious inaccuracies.\n\n(2) The facility's explanation and documentation are sufficient to satisfy the requirements for the Attestation elements on which substantive review is conducted (as described in paragraph (a) of this section).\n\n(3) The facility has no outstanding \u201cinsufficient funds\u201d check(s) in connection with filing fee(s) for prior Attestation(s).\n\n(4) The facility has no outstanding civil money penalties and/or has not failed to satisfy a remedy assessed by the Wage and Hour Administrator, under subpart M of this part, where that penalty or remedy assessment has become the final agency action.\n\n(5) The facility has not been disqualified from approval of any petitions filed by, or on behalf of, the facility under section 204 or section 212(m) of the INA.\n\n(e)  DOL not the guarantor.  DOL is not the guarantor of the accuracy, truthfulness or adequacy of an Attestation accepted for filing.\n\n(f)  Attestation Effective and Expiration Dates.  An Attestation becomes filed and effective as of the date it is accepted and signed by the ETA certifying officer. Such Attestation is valid until the date that is the later of the end of the 12-month period beginning on the date of acceptance for filing with the Secretary, or the end of the period of admission (under INA section 101(a)(15)(H)(i)(c)) of the last alien with respect to whose admission the Attestation was applied, unless the Attestation is suspended or invalidated earlier than such date pursuant to \u00a7 655.1132."], ["20:20:3.0.2.1.27.10.41.14", 20, "Employees' Benefits", "V", "", "655", "PART 655\u2014TEMPORARY EMPLOYMENT OF FOREIGN WORKERS IN THE UNITED STATES", "L", "Subpart L\u2014What Requirements Must a Facility Meet to Employ H-1C Nonimmigrant Workers as Registered Nurses?", "", "\u00a7 655.1132 When will the Department suspend or invalidate an approved Attestation?", "DOL", "", "", "", "(a) Suspension or invalidation of an Attestation may result where: the facility's check for the filing fee is not honored by a financial institution; a Board of Alien Labor Certification Appeals (BALCA) decision reverses an ETA certification of the Attestation; ETA finds that it made an error in its review and certification of the Attestation; an enforcement proceeding has finally determined that the facility failed to meet a condition attested to, or that there was a misrepresentation of material fact in an Attestation; the facility has failed to pay civil money penalties and/or failed to satisfy a remedy assessed by the Wage and Hour Administrator, where that penalty or remedy assessment has become the final agency action. If an Attestation is suspended or invalidated, ETA will notify USCIS.\n\n(b)  BALCA decision or final agency action in an enforcement proceeding.  If an Attestation is suspended or invalidated as a result of a BALCA decision overruling an ETA acceptance of the Attestation for filing, or is suspended or invalidated as a result of an enforcement action by the Administrator under subpart M of this part, such suspension or invalidation may not be separately appealed, but shall be merged with appeals on the underlying matter.\n\n(c)  ETA action.  If, after accepting an Attestation for filing, ETA discovers that it erroneously accepted that Attestation for filing and, as a result, ETA suspends or invalidates that acceptance, the facility may appeal such suspension or invalidation under \u00a7 655.1135 as if that suspension or invalidation were a decision to reject the Attestation for filing.\n\n(d) A facility must comply with the terms of its Attestation, even if such Attestation is suspended, invalidated or expired, as long as any H-1C nurse is at the facility, unless the Attestation is superseded by a subsequent Attestation accepted for filing by ETA."], ["20:20:3.0.2.1.27.10.41.15", 20, "Employees' Benefits", "V", "", "655", "PART 655\u2014TEMPORARY EMPLOYMENT OF FOREIGN WORKERS IN THE UNITED STATES", "L", "Subpart L\u2014What Requirements Must a Facility Meet to Employ H-1C Nonimmigrant Workers as Registered Nurses?", "", "\u00a7 655.1135 What appeals procedures are available concerning ETA's actions on a facility's Attestation?", "DOL", "", "", "[65 FR 51149, Aug. 22, 2000, as amended at 75 FR 10406, Mar. 5, 2010]", "(a)  Appeals of acceptances or rejections.  Any interested party may appeal ETA's acceptance or rejection of an Attestation submitted by a facility for filing. However, such an appeal shall be limited to ETA's determination on one or more of the attestation elements for which ETA conducts a substantive review (as described in \u00a7 655.1130(a)). Such appeal must be filed no later than 30 days after the date of the acceptance or rejection, and will be considered under the procedures set forth at paragraphs (d) and (f) of this section.\n\n(b)  Appeal of invalidation or suspension.  An interested party may appeal ETA's invalidation or suspension of a filed Attestation due to a discovery by ETA that it made an error in its review of the Attestation, as described in \u00a7 655.1132.\n\n(c)  Parties to the appeal.  In the case of an appeal of an acceptance, the facility will be a party to the appeal; in the case of the appeal of a rejection, invalidation, or suspension, the collective bargaining representative (if any) representing nurses at the facility shall be a party to the appeal. Appeals shall be in writing; shall set forth the grounds for the appeal; shall state if  de novo  consideration by BALCA is requested; and shall be mailed by certified mail within 30 calendar days of the date of the action from which the appeal is taken ( i.e.,  the acceptance, rejection, suspension or invalidation of the Attestation).\n\n(d)  Where to file appeals.  Appeals made under this section must be in writing and must be mailed by certified mail to: U.S. Department of Labor, Employment and Training Administration, Office of Foreign Labor Certification, Chicago National Processing Center, 536 South Clark Street, Chicago, IL 60605-1509.\n\n(e)  Transmittal of the case file to BALCA.  Upon receipt of an appeal under this section, the Certifying Office shall send to BALCA a certified copy of the ETA case file, containing the Attestation and supporting documentation and any other information or data considered by ETA in taking the action being appealed. The administrative law judge chairing BALCA shall assign a panel of one or more administrative law judges who serve on BALCA to review the record for legal sufficiency and to consider and rule on the appeal.\n\n(f)  Consideration on the record; de novo hearings.  BALCA may not remand, dismiss, or stay the case, except as provided in paragraph (h) of this section, but may otherwise consider the appeal on the record or in a  de novo  hearing (on its own motion or on a party's request). Interested parties and  amici  curiae may submit briefs in accordance with a schedule set by BALCA. The ETA official who made the determination which was appealed will be represented by the Associate Solicitor for Employment and Training Legal Services, Office of the Solicitor, Department of Labor, or the Associate Solicitor's designee. If BALCA determines to hear the appeal on the record without a  de novo  hearing, BALCA shall render a decision within 30 calendar days after BALCA's receipt of the case file. If BALCA determines to hear the appeal through a  de novo  hearing, the procedures contained in 29 CFR part 18 will apply to such hearings, except that:\n\n(1) The appeal will not be considered to be a complaint to which an answer is required.\n\n(2) BALCA shall ensure that, at the request of the appellant, the hearing is scheduled to take place within a reasonable period after BALCA's receipt of the case file (see also the time period described in paragraph (f)(4) of this section).\n\n(3) Technical rules of evidence, such as the Federal Rules of Evidence and subpart B of the Rules of Practice and Procedure for Administrative Hearings Before the Office of Administrative Law Judges (29 CFR part 18, subpart B), will not apply to any hearing conducted pursuant to this subpart, but rules or principles designed to assure production of the most credible evidence available, and to subject testimony to test by cross-examination, shall be applied where reasonably necessary by BALCA in conducting the hearing. BALCA may exclude irrelevant, immaterial, or unduly repetitious evidence. The certified copy of the case file transmitted to BALCA by the Certifying Officer must be made part of the evidentiary record of the case and need not be moved into evidence.\n\n(4) BALCA's decision shall be rendered within 120 calendar days after BALCA's receipt of the case file.\n\n(g)  Dismissals and stays.  If BALCA determines that the appeal is solely a question of misrepresentation by the facility or is solely a complaint of the facility's nonperformance of the Attestation, BALCA shall dismiss the case and refer the matter to the Administrator, Wage and Hour Division, for action under subpart M. If BALCA determines that the appeal is partially a question of misrepresentation by the facility, or is partially a complaint of the facility's nonperformance of the Attestation, BALCA shall refer the matter to the Administrator, Wage and Hour Division, for action under subpart M of this part and shall stay BALCA consideration of the case pending final agency action on such referral. During such stay, the 120-day period described in paragraph (f)(1)(iv) of this section shall be suspended.\n\n(h)  BALCA's decision.  After consideration on the record or a  de novo  hearing, BALCA shall either affirm or reverse ETA's decision, and shall so notify the appellant; and any other parties.\n\n(i)  Decisions on Attestations.  With respect to an appeal of the acceptance, rejection, suspension or invalidation of an Attestation, the decision of BALCA shall be the final decision of the Secretary, and no further review shall be given to the matter by any DOL official."], ["20:20:3.0.2.1.27.10.41.16", 20, "Employees' Benefits", "V", "", "655", "PART 655\u2014TEMPORARY EMPLOYMENT OF FOREIGN WORKERS IN THE UNITED STATES", "L", "Subpart L\u2014What Requirements Must a Facility Meet to Employ H-1C Nonimmigrant Workers as Registered Nurses?", "", "\u00a7 655.1150 What materials must be available to the public?", "DOL", "", "", "[65 FR 51149, Aug. 22, 2000, as amended at 75 FR 10406, Mar. 5, 2010]", "(a)  Public examination at ETA.  ETA will make available, upon request, for public examination at the Office of Foreign Labor Certification, Employment Training Administration, U.S. Department of Labor, Room C-4312, 200 Constitution Avenue, NW., Washington, DC 20210, a list of facilities which have filed attestations; a copy of the facility's attestation(s) and any supporting documentation; and a copy of each of the facility's H-1C petitions (if any) to USCIS along with the USCIS approval notices (if any).\n\n(b)  Public examination at facility.  For the duration of the Attestation's validity and thereafter for so long as the facility employs any H-1C nurse under the Attestation, the facility must maintain a separate file containing a copy of the Attestation, a copy of the prevailing wage determination, a description of the facility pay system or a copy of the facility's pay schedule if either document exists, copies of the notices provided under \u00a7 655.1115 and \u00a7 655.1116, a description of the \u201ctimely and significant steps\u201d as described in \u00a7 655.1114, and any other documentation required by this part to be contained in the public access file. The facility must make this file available to any interested parties within 72 hours upon written or oral request. If a party requests a copy of the file, the facility shall provide it and any charge for such copy shall not exceed the cost of reproduction.\n\n(c)  ETA Notice to public.  ETA will periodically publish a notice in the  Federal Register  announcing the names and addresses of facilities which have submitted Attestations; facilities which have Attestations on file; facilities which have submitted Attestations which have been rejected for filing; and facilities which have had Attestations suspended."], ["20:20:3.0.2.1.27.10.41.2", 20, "Employees' Benefits", "V", "", "655", "PART 655\u2014TEMPORARY EMPLOYMENT OF FOREIGN WORKERS IN THE UNITED STATES", "L", "Subpart L\u2014What Requirements Must a Facility Meet to Employ H-1C Nonimmigrant Workers as Registered Nurses?", "", "\u00a7 655.1101 What are the responsibilities of the government agencies and the facilities that participate in the H-1C program?", "DOL", "", "", "[75 FR 10403, Mar. 5, 2010]", "(a)  Federal agencies' responsibilities.  The Department of Labor (DOL), Department of Homeland Security, and Department of State are involved in the H-1C visa process. Within DOL, the Employment and Training Administration (ETA) and the Wage and Hour Division have responsibility for different aspects of the process.\n\n(b)  Facility's attestation responsibilities.  Each facility seeking one or more H-1C nurse(s) must, as the first step, submit an attestation on Form ETA 9081, as described in \u00a7 655.1110 of this part, to the U.S. Department of Labor, Employment and Training Administration, Office of Foreign Labor Certification, Chicago National Processing Center, 536 South Clark Street, Chicago, IL 60605-1509. If the attestation satisfies the criteria stated in \u00a7 655.1130 and includes the supporting information required by \u00a7 655.1110 and by \u00a7 655.1114, ETA shall accept the attestation form for filing, and return the accepted attestation to the facility.\n\n(c)  H-1C petitions.  Upon ETA's acceptance of the attestation, the facility may then file petitions with U.S. Citizenship and Immigration Services (USCIS) for the admission of, change to, or extension of status of H-1C nurses. The facility must attach a copy of the accepted attestation (Form ETA 9081) to the petition or the request for adjustment or extension of status, filed with USCIS. At the same time that the facility files an H-1C petition with USCIS, it must also send a copy of the petition to the Employment and Training Administration, Administrator, Office of Foreign Labor Certification, 200 Constitution Avenue, NW., Room C-4312, Washington, DC 20210. The facility must also send to this same ETA address a copy of the USCIS petition approval notice within 5 days after it is received from USCIS.\n\n(d)  Visa issuance.  USCIS makes determinations, in adjudicating an H-1C petition, whether the foreign worker possesses the required qualifications and credentials to be employed as an H-1C nurse. The Department of State is subsequently responsible for determining visa eligibility.\n\n(e)  Board of Alien Labor Certification Appeals (BALCA) review of Attestations accepted and not accepted for filing.  Any interested party may seek review by the BALCA of an Attestation accepted or not accepted for filing by ETA. However, such appeals are limited to ETA actions on the three Attestation matters on which ETA conducts a substantive review ( i.e.,  the employer's eligibility as a facility; the facility's attestation to alternative timely and significant steps; and the facility's assertion that taking a second timely and significant step would not be reasonable).\n\n(f)  Complaints.  Complaints concerning misrepresentation of material fact(s) in the Attestation or failure of the facility to carry out the terms of the Attestation may be filed with the Wage and Hour Division of DOL, according to the procedures set forth in subpart M of this part. The Wage and Hour Administrator shall investigate and, where appropriate, after an opportunity for a hearing, assess remedies and penalties. Subpart M of this part also provides that interested parties may obtain an administrative law judge hearing and may seek review of the administrative law judge's decision at the Department's Administrative Review Board."], ["20:20:3.0.2.1.27.10.41.3", 20, "Employees' Benefits", "V", "", "655", "PART 655\u2014TEMPORARY EMPLOYMENT OF FOREIGN WORKERS IN THE UNITED STATES", "L", "Subpart L\u2014What Requirements Must a Facility Meet to Employ H-1C Nonimmigrant Workers as Registered Nurses?", "", "\u00a7 655.1102 What are the definitions of terms that are used in these regulations?", "DOL", "", "", "[65 FR 51149, Aug. 22, 2000, as amended at 73 FR 78068, Dec. 19, 2008; 75 FR 10404, Mar. 5, 2010]", "For the purposes of subparts L and M of this part:\n\nAccepted for filing  means that the Attestation and any supporting documentation submitted by the facility have been received by the Employment and Training Administration of the Department of Labor and have been found to be complete and acceptable for purposes of Attestation requirements in \u00a7\u00a7 655.1110 through 655.1118.\n\nAdministrative Law Judge  means an official appointed under 5 U.S.C. 3105.\n\nAdministrator  means the Administrator of the Wage and Hour Division, Employment Standards Administration, Department of Labor, and such authorized representatives as may be designated to perform any of the functions of the Administrator under subparts L and M of this part.\n\nAdministrator, Office of Foreign Labor Certification (OFLC ) means the primary official of the Office of Foreign Labor Certification (OFLC Administrator), or the OFLC Administrator's designee.\n\nAggrieved party  means a person or entity whose operations or interests are adversely affected by the employer's alleged misrepresentation of material fact(s) or non-compliance with the Attestation and includes, but is not limited to:\n\n(1) A worker whose job, wages, or working conditions are adversely affected by the facility's alleged misrepresentation of material fact(s) or non-compliance with the attestation;\n\n(2) A bargaining representative for workers whose jobs, wages, or working conditions are adversely affected by the facility's alleged misrepresentation of material fact(s) or non-compliance with the attestation;\n\n(3) A competitor adversely affected by the facility's alleged misrepresentation of material fact(s) or non-compliance with the attestation; and\n\n(4) A government agency which has a program that is impacted by the facility's alleged misrepresentation of material fact(s) or non-compliance with the attestation.\n\nAttorney General  means the chief official of the U.S. Department of Justice or the Attorney General's designee.\n\nBoard of Alien Labor Certification Appeals (BALCA)  means a panel of one or more administrative law judges who serve on the permanent Board of Alien Labor Certification Appeals established by 20 CFR part 656. BALCA consists of administrative law judges assigned to the Department of Labor and designated by the Chief Administrative Law Judge to be members of the Board of Alien Labor Certification Appeals.\n\nCertifying Officer  means a Department of Labor official, or such official's designee, who makes determinations about whether or not H-1C attestations are acceptable for certification.\n\nChief Administrative Law Judge  means the chief official of the Office of the Administrative Law Judges of the Department of Labor or the Chief Administrative Law Judge's designee.\n\nDate of filing  means the date an Attestation is \u201caccepted for filing\u201d by ETA.\n\nDepartment  and  DOL  mean the United States Department of Labor.\n\nDivision  means the Wage and Hour Division of the Employment\n\nStandards Administration, DOL.\n\nEmployed  or  employment  means the employment relationship as determined under the common law, except that a facility which files a petition on behalf of an H-1C nonimmigrant is deemed to be the employer of that H-1C nonimmigrant without the necessity of the application of the common law test. Under the common law, the key determinant is the putative employer's right to control the means and manner in which the work is performed. Under the common law, \u201cno shorthand formula or magic phrase * * * can be applied to find the answer * * *. [A]ll of the incidents of the relationship must be assessed and weighed with no one factor being decisive.\u201d  NLRB  v.  United Ins. Co. of America,  390 U.S. 254, 258 (1968). The determination should consider the following factors and any other relevant factors that would indicate the existence of an employment relationship:\n\n(1) The firm has the right to control when, where, and how the worker performs the job;\n\n(2) The work does not require a high level of skill or expertise;\n\n(3) The firm rather than the worker furnishes the tools, materials, and equipment;\n\n(4) The work is performed on the premises of the firm or the client;\n\n(5) There is a continuing relationship between the worker and the firm;\n\n(6) The firm has the right to assign additional projects to the worker;\n\n(7) The firm sets the hours of work and the duration of the job;\n\n(8) The worker is paid by the hour, week, month or an annual salary, rather than for the agreed cost of performing a particular job;\n\n(9) The worker does not hire or pay assistants;\n\n(10) The work performed by the worker is part of the regular business (including governmental, educational and nonprofit operations) of the firm;\n\n(11) The firm is itself in business;\n\n(12) The worker is not engaged in his or her own distinct occupation or business;\n\n(13) The firm provides the worker with benefits such as insurance, leave, or workers' compensation;\n\n(14) The worker is considered an employee of the firm for tax purposes ( i.e.,  the entity withholds federal, state, and Social Security taxes);\n\n(15) The firm can discharge the worker; and\n\n(16) The worker and the firm believe that they are creating an employer-employee relationship.\n\nEmployment and Training Administration (ETA)  means the agency within the Department of Labor (DOL) which includes the Office of Foreign Labor Certification (OFLC).\n\nFacility  means a \u201csubsection (d) hospital\u201d (as defined in section 1886(d)(1)(B) of the Social Security Act (42 U.S.C. 1395ww(d)(1)(B)) that meets the following requirements:\n\n(1) As of March 31, 1997, the hospital was located in a health professional shortage area (as defined in section 332 of the Public Health Service Act (42 U.S.C. 245e)); and\n\n(2) Based on its settled cost report filed under Title XVIII of the Social Security Act (42 U.S.C. 1395  et seq. ) for its cost reporting period beginning during fiscal year 1994\u2014\n\n(i) The hospital has not less than 190 licensed acute care beds;\n\n(ii) The number of the hospital's inpatient days for such period which were made up of patients who (for such days) were entitled to benefits under part A of such title is not less than 35 percent of the total number of such hospital's acute care inpatient days for such period; and\n\n(iii) The number of the hospital's inpatient days for such period which were made up of patients who (for such days) were eligible for medical assistance under a State plan approved under Title XIX of the Social Security Act, is not less than 28 percent of the total number of such hospital's acute care inpatient days for such period.\n\n(3) The requirements of paragraph (2) of this definition shall not apply to a facility in Guam, the Commonwealth of the Northern Mariana Islands, or the Virgin Islands.\n\nFull-time employment  means work where the nurse is regularly scheduled to work 40 hours or more per week, unless the facility documents that it is common practice for the occupation at the facility or for the occupation in the geographic area for full-time nurses to work fewer hours per week.\n\nGeographic area  means the area within normal commuting distance of the place (address) of the intended worksite. If the geographic area does not include a sufficient number of facilities to make a prevailing wage determination, the term \u201cgeographic area\u201d shall be expanded with respect to the attesting facility to include a sufficient number of facilities to permit a prevailing wage determination to be made. If the place of the intended worksite is within a Metropolitan Statistical Area (MSA) or Primary Metropolitan Statistical Area (PMSA), any place within the MSA or PMSA will be deemed to be within normal commuting distance of the place of intended employment.\n\nH-1C nurse  means any nonimmigrant alien admitted to the United States to perform services as a nurse under section 101(a)(15)(H)(i)(c) of the Act (8 U.S.C. 1101(a)(15)(H)(i)(c)).\n\nINA  means the Immigration and Nationality Act, as amended, 8\n\nU.S.C. 1101  et seq.\n\nLockout  means a labor dispute involving a work stoppage in which an employer withholds work from its employees in order to gain a concession from them.\n\nNurse  means a person who is or will be authorized by a State Board of Nursing to engage in registered nursing practice in a State or U.S. territory or possession at a facility which provides health care services. A staff nurse means a nurse who provides nursing care directly to patients. In order to qualify under this definition of \u201cnurse\u201d the alien must:\n\n(1) Have obtained a full and unrestricted license to practice nursing in the country where the alien obtained nursing education, or have received nursing education in the United States;\n\n(2) Have passed the examination given by the Commission on Graduates for Foreign Nursing Schools (CGFNS), or have obtained a full and unrestricted (permanent) license to practice as a registered nurse in the state of intended employment, or have obtained a full and unrestricted (permanent) license in any state or territory of the United States and received temporary authorization to practice as a registered nurse in the state of intended employment; and,\n\n(3) Be fully qualified and eligible under the laws (including such temporary or interim licensing requirements which authorize the nurse to be employed) governing the place of intended employment to practice as a registered nurse immediately upon admission to the United States, and be authorized under such laws to be employed by the employer. For purposes of this paragraph, the temporary or interim licensing may be obtained immediately after the alien enters the United States and registers to take the first available examination for permanent licensure.\n\nOffice of Foreign Labor Certification (OFLC)  means the organizational component within the ETA that provides national leadership and policy guidance and develops regulations and procedures to carry out the responsibilities of the Secretary of Labor under the INA concerning foreign workers seeking admission to the United States.\n\nPrevailing wage  means the weighted average wage paid to similarly employed registered nurses within the geographic area.\n\nSecretary  means the Secretary of Labor or the Secretary's designee.\n\nSimilarly employed  means employed by the same type of facility (acute care or long-term care) and working under like conditions, such as the same shift, on the same days of the week, and in the same specialty area.\n\nState  means one of the 50 States, the District of Columbia, Puerto Rico, the U.S. Virgin Islands, and Guam.\n\nStrike  means a labor dispute in which employees engage in a concerted stoppage of work (including stoppage by reason of the expiration of a collective-bargaining agreement) or engage in any concerted slowdown or other concerted interruption of operations.\n\nUnited States (U.S.)  means the continental U.S., Alaska, Hawaii, the Commonwealth of Puerto Rico, and the territories of Guam, the Virgin Islands, and the Commonwealth of the Northern Mariana Islands.\n\nU.S. Citizenship and Immigration Services (USCIS)  means the bureau within the Department of Homeland Security that makes determinations under the INA on whether to approve petitions seeking classification and/or admission of nonimmigrant nurses under the H-1C program.\n\nUnited States (U.S.) nurse  means any nurse who: is a U.S. citizen; is a U.S. national; is lawfully admitted for permanent residence; is admitted as a refugee under 8 U.S.C. 1157; or is granted asylum under 8 U.S.C. 1158.\n\nWorksite  means the location where the nurse is involved in the practice of nursing."], ["20:20:3.0.2.1.27.10.41.4", 20, "Employees' Benefits", "V", "", "655", "PART 655\u2014TEMPORARY EMPLOYMENT OF FOREIGN WORKERS IN THE UNITED STATES", "L", "Subpart L\u2014What Requirements Must a Facility Meet to Employ H-1C Nonimmigrant Workers as Registered Nurses?", "", "\u00a7 655.1110 What requirements are imposed in the filing of an attestation?", "DOL", "", "", "[75 FR 10404, Mar. 5, 2010]", "(a)  Who may file Attestations?  (1) Any hospital which meets the definition of facility in \u00a7\u00a7 655.1102 and 655.1111 may file an Attestation.\n\n(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 the point.\n\n(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.\n\n(b)  Where and when should attestations be submitted?  (1) Attestations shall be submitted, by U.S. mail or private carrier, to ETA at the following address: U.S. Department of Labor, Employment and Training Administration, Office of Foreign Labor Certification, Chicago National Processing Center, 536 South Clark Street, Chicago, IL 60605-1509.\n\n(2) Attestations shall be reviewed and accepted for filing or rejected by ETA within 30 calendar days of the date they are received by ETA. Therefore, it is recommended that attestations be submitted to ETA at least 35 calendar days prior to the planned date for filing an H-1C visa petition with USCIS.\n\n(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.\n\n(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.\n\n(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).\n\n(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 \u00a7 655.1114. ( See  \u00a7 655.1114(b)(2)(v).)\n\n(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  \u00a7 655.1114(c).)\n\n(2) Filing fee of $250 per Attestation. Payment must be in the form of a check or money order, payable to the \u201cU.S. Department of Labor.\u201d Remittances must be drawn on a bank or other financial institution located in the U.S. and be payable in U.S. currency.\n\n(3) Copies of H-1C petitions and USCIS approval notices. After ETA has approved the attestation used by the facility to support any H-1C petition, the facility must send copies of each H-1C petition and USCIS approval notice on such petition to Employment and Training Administration, Administrator, Office of Foreign Labor Certification, 200 Constitution Avenue, NW., Room C-4312, Washington, DC 20210.\n\n(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:\n\n(1) That it qualifies as a facility ( See  \u00a7 655.1111);\n\n(2) That employment of H-1C nurses will not adversely affect the wages or working conditions of similarly employed nurses ( See  \u00a7 655.1112);\n\n(3) That the facility will pay the H-1C nurse the facility wage rate ( See  \u00a7 655.1113);\n\n(4) That the facility has taken, and is taking, timely and significant steps to recruit and retain U.S. nurses ( See  \u00a7 655.1114);\n\n(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  \u00a7 655.1115);\n\n(6) That the facility will notify its workers and give a copy of the Attestation to every nurse employed at the facility ( See  \u00a7 655.1116);\n\n(7) That no more than 33 percent of nurses employed by the facility will be H-1C nonimmigrants ( See  \u00a7 655.1117); and\n\n(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  \u00a7 655.1118)."], ["20:20:3.0.2.1.27.10.41.5", 20, "Employees' Benefits", "V", "", "655", "PART 655\u2014TEMPORARY EMPLOYMENT OF FOREIGN WORKERS IN THE UNITED STATES", "L", "Subpart L\u2014What Requirements Must a Facility Meet to Employ H-1C Nonimmigrant Workers as Registered Nurses?", "", "\u00a7 655.1111 Element I\u2014What hospitals are eligible to participate in the H-1C program?", "DOL", "", "", "", "(a) The first attestation element requires that the employer be a \u201cfacility\u201d for purposes of the H-1C program, as defined in INA Section 212(m)(6), 8 U.S.C. 1182 (2)(m)(6).\n\n(b) A qualifying facility under that section is a \u201csubpart (d) hospital,\u201d as defined in Section 1886(d)(1)(B) of the Social Security Act, 42 U.S.C. 1395ww(d)(1)(B), which:\n\n(1) Was located in a health professional shortage area (HPSA), as determined by the Department of Health and Human Services, on March 31, 1997. A list of HPSAs, as of March 31, 1997, was published in the  Federal Register  on May 30, 1997 (62 FR 29395);\n\n(2) Had at least 190 acute care beds, as determined by its settled cost report, filed under Title XVIII of the Social Security Act, (42 U.S.C. 1395  et seq. ), for its fiscal year 1994 cost reporting period ( i.e.,  Form HCFA-2552-92, Worksheet S-3, Part I, column 1, line 8);\n\n(3) Had at least 35% of its acute care inpatient days reimbursed by Medicare, as determined by its settled cost report, filed under Title XVIII of the Social Security Act, for its fiscal year 1994 cost reporting period ( i.e.,  Form HCFA-2552-92, Worksheet S-3, Part I, column 4, line 8 as a percentage of column 6, line 8); and\n\n(4) Had at least 28% of its acute care inpatient days reimbursed by Medicaid, as determined by its settled cost report, filed under Title XVIII of the Social Security Act, for its fiscal year 1994 cost reporting period ( i.e.,  Form HCFA-2552-92, Worksheet S-3, Part I, column 5, line 8 as a percentage of column 6, line 8).\n\n(c) The  Federal Register  notice containing the controlling list of HPSAs (62 FR 29395), can be found in federal depository libraries and on the Government Printing Office Internet website at  http://www.access.gpo.gov.\n\n(d) To make a determination about information in the settled cost report, the employer shall examine its own Worksheet S-3, Part I, Hospital and Hospital Health Care Complex Statistical Data, in the Hospital and Hospital Health Care Complex Cost Report, Form HCFA 2552, filed for the fiscal year 1994 cost reporting period.\n\n(e) The facility must maintain a copy of the portions of Worksheet S-3, Part I and Worksheet S, Parts I and II of HCFA Form 2552 which substantiate the attestation of eligibility as a \u201cfacility.\u201d One set of copies of this document must be kept in the facility's public access file. The full Form 2552 for fiscal year 1994 must be made available to the Department upon request."], ["20:20:3.0.2.1.27.10.41.6", 20, "Employees' Benefits", "V", "", "655", "PART 655\u2014TEMPORARY EMPLOYMENT OF FOREIGN WORKERS IN THE UNITED STATES", "L", "Subpart L\u2014What Requirements Must a Facility Meet to Employ H-1C Nonimmigrant Workers as Registered Nurses?", "", "\u00a7 655.1112 Element II\u2014What does \u201cno adverse effect on wages and working conditions\u201d mean?", "DOL", "", "", "[65 FR 51149, Aug. 22, 2000, as amended at 73 FR 78068, Dec. 19, 2008]", "(a) The second attestation element requires that the facility attest that \u201cthe employment of the alien will not adversely affect the wages and working conditions of registered nurses similarly employed.\u201d\n\n(b) For purposes of this program, \u201cemployment\u201d is full-time employment as defined in \u00a7 655.1102; part-time employment of H-1C nurses is not authorized.\n\n(c)  Wages.  To meet the requirement of no adverse effect on wages, the facility must attest that it will pay each nurse employed by the facility at least the prevailing wage for the occupation in the geographic area. The facility must pay the higher of the wage required under this paragraph or the wage required under \u00a7 655.1113 ( i.e.,  the third attestation element: facility wage).\n\n(1)  Collectively bargained wage rates.  Where wage rates for nurses at a facility are the result of arms-length collective bargaining, those rates shall be considered \u201cprevailing\u201d for that facility for the purposes of this subpart.\n\n(2) Determination of prevailing wage for H-1C purposes. In the absence of collectively bargained wage rates, the National Processing Center (NPC) having jurisdiction as determined by OFLC shall determine the prevailing wage for similarly employed nurses in the geographic area in accordance with administrative guidelines issued by ETA for prevailing wage determination requests submitted on or after the effective date of these regulations.\n\n(i) Prior to the effective date of these regulations, the SWA having jurisdiction over the area of intended employment shall continue to receive and process prevailing wage determination requests in accordance with the regulatory provisions and Department guidance in effect prior to January 1, 2009. On or after the effective date of these regulations, the NPC shall receive and process prevailing wage determination requests in accordance with these regulations and with Department guidance. A facility seeking to determine the prevailing wage must request a prevailing wage determination from the NPC having jurisdiction for providing the prevailing wage over the proposed area of intended employment not more than 90 days prior to the date the attestation is submitted to the Department. The NPC must enter its wage determination on the form it uses and return the form with its endorsement to the employer. Once a facility obtains a prevailing wage determination from the NPC and files an attestation supported by that prevailing wage determination, the facility shall be deemed to have accepted the prevailing wage determination as accurate and appropriate (as to both the occupational classification and the wage rate) and thereafter shall not contest the legitimacy of that prevailing wage determination in an investigation or enforcement action pursuant to subpart M of this part.\n\n(ii) A facility may challenge the prevailing wage determination with the NPC having provided such determination according to administrative guidelines issued by ETA, but must obtain a final ruling prior to filing an attestation.\n\n(3)  Total compensation package.  The prevailing wage under this paragraph relates to wages only. Employers are cautioned that each item in the total compensation package for U.S. nurses, H-1C, and other nurses employed by the facility must be the same within a given facility, including such items as housing assistance and fringe benefits.\n\n(4)  Documentation of pay and total compensation.  The facility must maintain in its public access file a copy of the prevailing wage, which shall be either the collective bargaining agreement or the determination that was obtained from the NPC. The facility must maintain payroll records, as specified in \u00a7 655.1113, and make such records available to the Administrator in the event of an enforcement action pursuant to subpart M.\n\n(d)  Working conditions.  To meet the requirement of no adverse effect on working conditions, the facility must attest that it will afford equal treatment to U.S. and H-1C nurses with the same seniority, with respect to such working conditions as the number and scheduling of hours worked (including shifts, straight days, weekends); vacations; wards and clinical rotations; and overall staffing-patient patterns. In the event of an enforcement action pursuant to subpart M, the facility must provide evidence substantiating compliance with this attestation."], ["20:20:3.0.2.1.27.10.41.7", 20, "Employees' Benefits", "V", "", "655", "PART 655\u2014TEMPORARY EMPLOYMENT OF FOREIGN WORKERS IN THE UNITED STATES", "L", "Subpart L\u2014What Requirements Must a Facility Meet to Employ H-1C Nonimmigrant Workers as Registered Nurses?", "", "\u00a7 655.1113 Element III\u2014What does \u201cfacility wage rate\u201d mean?", "DOL", "", "", "", "(a) The third attestation element requires that the facility employing or seeking to employ the alien must attest that \u201cthe alien employed by the facility will be paid the wage rate for registered nurses similarly employed by the facility.\u201d\n\n(b) The facility must pay the higher of the wage required in this section ( i.e.  facility wage), or the wage required in \u00a7 655.1112 ( i.e.,  prevailing wage).\n\n(c)  Wage obligations for H-1C nurses in nonproductive status \u2014(1)  Circumstances where wages must be paid.  If the H-1C nurse is not performing work and is in a nonproductive status due to a decision by the facility (e.g., because of lack of assigned work), because the nurse has not yet received a license to work as a registered nurse, or any other reason except as specified in paragraph (c)(2) of this section, the facility is required to pay the salaried H-1C nurse the full amount of the weekly salary, or to pay the hourly-wage H-1C nurse for a full-time week (40 hours or such other number of hours as the facility can demonstrate to be full-time employment) at the applicable wage rate.\n\n(2)  Circumstances where wages need not be paid.  If an H-1C nurse experiences a period of nonproductive status due to conditions unrelated to employment which take the nurse away from his/her duties at his/her voluntary request and convenience (e.g., touring the U.S., caring for ill relative) or render the nonimmigrant unable to work (e.g., maternity leave, automobile accident which temporarily incapacitates the nonimmigrant), then the facility is not obligated to pay the required wage rate during that period,  provided that  such period is not subject to payment under the facility's benefit plan. Payment need not be made if there has been a  bona fide  termination of the employment relationship, as demonstrated by notification to USCIS that the employment relationship has been terminated and the petition should be canceled.\n\n(d)  Documentation.  The facility must maintain documentation substantiating compliance with this attestation element. The public access file shall contain the facility pay schedule for nurses or a description of the factors taken into consideration by the facility in making compensation decisions for nurses, if either of these documents exists. Categories of nursing positions not covered by the public access file documentation shall not be covered by the Attestation, and, therefore, such positions shall not be filled or held by H-1C nurses. The facility must maintain the payroll records, as required under the Fair Labor Standards Act at 29 CFR part 516, and make such records available to the Administrator in the event of an enforcement action pursuant to subpart M of this part."], ["20:20:3.0.2.1.27.10.41.8", 20, "Employees' Benefits", "V", "", "655", "PART 655\u2014TEMPORARY EMPLOYMENT OF FOREIGN WORKERS IN THE UNITED STATES", "L", "Subpart L\u2014What Requirements Must a Facility Meet to Employ H-1C Nonimmigrant Workers as Registered Nurses?", "", "\u00a7 655.1114 Element IV\u2014What are the timely and significant steps an H-1C employer must take to recruit and retain U.S. nurses?", "DOL", "", "", "", "(a) The fourth attestation element requires that the facility attest that it \u201chas taken and is taking timely and significant steps designed to recruit and retain sufficient registered nurses who are United States citizens or immigrants who are authorized to perform nursing services, in order to remove as quickly as reasonably possible the dependence of the facility on nonimmigrant registered nurses.\u201d The facility must take at least two such steps, unless it demonstrates that taking a second step is not reasonable. The steps described in this section shall not be considered to be an exclusive list of the significant steps that may be taken to meet the conditions of this section. Nothing in this subpart or subpart M of this part shall require a facility to take more than one step, if the facility can demonstrate that taking a second step is not reasonable. A facility choosing to take timely and significant steps other than those specifically described in this section must submit with its Attestation a description of the step(s) it is proposing to take and an explanation of how the proposed step(s) are of comparable timeliness and significance to those described in this section ( See  \u00a7 655.1110(c)(1)(iii)). A facility claiming that a second step is unreasonable must submit an explanation of why such second step would be unreasonable ( See  \u00a7 655.1110(c)(1)(iv)).\n\n(b)  Descriptions of steps.  Each of the actions described in this section shall be considered a significant step reasonably designed to recruit and retain U.S. nurses. A facility choosing any of these steps shall designate such step on Form ETA 9081, thereby attesting that its program(s) meets the regulatory requirements set forth for such step. Section 212(m)(2)(E)(ii) of the INA provides that a violation shall be found if a facility fails to meet a condition attested to. Thus, a facility shall be held responsible for all timely and significant steps to which it attests.\n\n(1)  Statutory steps \u2014(i)  Operating a training program for registered nurses at the facility or financing (or providing participation in) a training program for registered nurses elsewhere.  Training programs may include either courses leading to a higher degree ( i.e.,  beyond an associate or a baccalaureate degree), or continuing education courses. If the program includes courses leading to a higher degree, they must be courses which are part of a program accepted for degree credit by a college or university and accredited by a State Board of Nursing or a State Board of Higher Education (or its equivalent), as appropriate. If the program includes continuing education courses, they must be courses which meet criteria established to qualify the nurses taking the courses to earn continuing education units accepted by a State Board of Nursing (or its equivalent). In either type of program, financing by the facility (either directly or arranged through a third party) shall cover the total costs of such training. The number of U.S. nurses for whom such training actually is provided shall be no less than half of the number of nurses who left the facility during the 12-month period prior to submission of the Attestation. U.S. nurses to whom such training was offered, but who rejected such training, may be counted towards those provided training.\n\n(ii)  Providing career development programs and other methods of facilitating health care workers to become registered nurses.  This may include programs leading directly to a degree in nursing, or career ladder/career path programs which could ultimately lead to a degree in nursing. Any such degree program shall be, at a minimum, through an accredited community college (leading to an associate's degree), 4-year college (a bachelor's degree), or diploma school, and the course of study must be one accredited by a State Board of Nursing (or its equivalent). The facility (either directly or arranged through a third party) must cover the total costs of such programs. U.S. workers participating in such programs must be working or have worked in health care occupations or facilities. The number of U.S. workers for whom such training is provided must be equal to no less than half the average number of vacancies for nurses during the 12-month period prior to the submission of the Attestation. U.S. nurses to whom such training was offered, but who rejected such training, may be counted towards those provided training.\n\n(iii)  Paying registered nurses wages at a rate higher than currently being paid to registered nurses similarly employed in the geographic area.  The facility's entire schedule of wages for nurses shall be at least 5 percent higher than the prevailing wage as determined by the NPC, and such differentials shall be maintained throughout the period of the Attestation's effectiveness.\n\n(iv)  Providing reasonable opportunities for meaningful salary advancement by registered nurses.  This may include salary advancement based on factors such as merit, education, and specialty, and/or salary advancement based on length of service, with other bases for wage differentials remaining constant.\n\n(A)  Merit, education, and specialty.  Salary advancement may be based on factors such as merit, education, and specialty, or the facility may provide opportunities for professional development of its nurses which lead to salary advancement (e.g., participation in continuing education or in-house educational instruction; service on special committees, task forces, or projects considered of a professional development nature; participation in professional organizations; and writing for professional publications). Such opportunities must be available to all the facility's nurses.\n\n(B)  Length of service.  Salary advancement may be based on length of service using clinical ladders which provide, annually, salary increases of 3 percent or more for a period of no less than 10 years, over and above the costs of living and merit, education, and specialty increases and differentials.\n\n(2)  Other possible steps.  The Act indicates that the four steps described in the statute (and set out in paragraph (b)(1) of this section) are not an exclusive list of timely and significant steps which might qualify. The actions described in paragraphs (b)(2)(i) through (iv) of this section, are also deemed to be qualified; in paragraph (b)(2)(v) of this section, the facility is afforded the opportunity to identify a timely and significant step of its own devising.\n\n(i)  Monetary incentives.  The facility provides monetary incentives to nurses, through bonuses and merit pay plans not included in the base compensation package, for additional education, and for efforts by the nurses leading to increased recruitment and retention of U.S. nurses. Such monetary incentives may be based on actions by nurses such as: Instituting innovations to achieve better patient care, increased productivity, reduced waste, and/or improved workplace safety; obtaining additional certification in a nursing specialty; accruing unused sick leave; recruiting other U.S. nurses; staying with the facility for a given number of years; taking less desirable assignments (other than shift differential); participating in professional organizations; serving on task forces and on special committees; or contributing to professional publications.\n\n(ii)  Special perquisites.  The facility provides nurses with special perquisites for dependent care or housing assistance of a nature and/or extent that constitute a \u201csignificant\u201d factor in inducing employment and retention of U.S. nurses.\n\n(iii)  Work schedule options.  The facility provides nurses with non-mandatory work schedule options for part-time work, job-sharing, compressed work week or non-rotating shifts (provided, however, that H-1C nurses are employed only in full-time work) of a nature and/or extent that constitute a \u201csignificant\u201d factor in inducing employment and retention of U.S. nurses.\n\n(iv)  Other training options.  The facility provides training opportunities to U.S. workers not currently in health care occupations to become registered nurses by means of financial assistance (e.g., scholarship, loan or pay-back programs) to such persons.\n\n(v)  Alternative but significant steps.  Facilities are encouraged to be innovative in devising timely and significant steps other than those described in paragraphs (b)(1) and (b)(2)(i) through (iv) of this section. To qualify, an alternative step must be of a timeliness and significance comparable to those in this section. A facility may designate on Form ETA 9081 that it has taken and is taking such alternate step(s), thereby attesting that the step(s) meet the statutory test of timeliness and significance comparable to those described in paragraphs (b)(1) and (b)(2)(i) through (iv) in promoting the development, recruitment, and retention of U.S. nurses. If such a designation is made on Form ETA 9081, the submission of the Attestation to ETA must include an explanation and appropriate documentation of the alternate step(s), and of the manner in which they satisfy the statutory test in comparison to the steps described in paragraphs (b)(1) and (b)(2)(i) through (iv). ETA will review the explanation and documentation and determine whether the alternate step(s) qualify under this subsection. The ETA determination is subject to review by the BALCA, upon the request of an interested party; such review shall be limited to this matter.\n\n(c)  Unreasonableness of second step.  Nothing in this subpart or subpart M of this part requires a facility to take more than one step, if the facility can demonstrate that taking a second step is not reasonable. However, a facility shall make every effort to take at least two steps. The taking of a second step may be considered unreasonable if it would result in the facility's financial inability to continue providing the same quality and quantity of health care or if the provision of nursing services would otherwise be jeopardized by the taking of such a step.\n\n(1) A facility may designate on Form ETA 9081 that the taking of a second step is not reasonable. If such a designation is made on Form ETA 9081, the submission of the Attestation to ETA shall include an explanation and appropriate documentation with respect to each of the steps described in paragraph (b) of this section (other than the step designated as being taken by the facility), showing why it would be unreasonable for the facility to take each such step and why it would be unreasonable for the facility to take any other step designed to recruit, develop and retain sufficient U.S. nurses to meet its staffing needs.\n\n(2) ETA will review the explanation and documentation, and will determine whether the taking of a second step would not be reasonable. The ETA determination is subject to review by the BALCA, upon the request of an interested party; such review shall be limited to this matter.\n\n(d)  Performance-based alternative to criteria for specific steps.  Instead of complying with the specific criteria for one or more of the steps in the second and/or succeeding years of participation in the H-1C program, a facility may include in its  prior  year's Attestation, in addition to the actions taken under specifically attested steps, that it will reduce the number of H-1C nurses it utilizes within one year from the date of the Attestation by at least 10 percent, without reducing the quality or quantity of services provided. If this goal is achieved, the facility shall so indicate on its subsequent year's Attestation. Further, the facility need not attest to any \u201ctimely and significant step\u201d on that subsequent attestation, if it again indicates that it shall again reduce the number of H-1C nurses it utilizes within one year from the date of the Attestation by at least 10 percent. This performance-based alternative is designed to permit a facility to achieve the objectives of the Act, without subjecting the facility to detailed requirements and criteria as to the specific means of achieving that objective.\n\n(e)  Documentation.  The facility must include in the public access file a description of the activities which constitute its compliance with each timely and significant step which is attested on Form ETA 9081 (e.g., summary of a training program for registered nurses; description of a career ladder showing meaningful opportunities for pay advancements for nurses). If the facility has attested that it will take an alternative step or that taking a second step is unreasonable, then the public access file must include the documentation which was submitted to ETA under paragraph (c) of this section. The facility must maintain in its non-public files, and must make available to the Administrator in the event of an enforcement action pursuant to subpart M of this part, documentation which provides a complete description of the nature and operation of its program(s) sufficient to substantiate its full compliance with the requirements of each timely and significant step which is attested to on Form ETA 9081. This documentation should include information relating to all of the requirements for the step in question."], ["20:20:3.0.2.1.27.10.41.9", 20, "Employees' Benefits", "V", "", "655", "PART 655\u2014TEMPORARY EMPLOYMENT OF FOREIGN WORKERS IN THE UNITED STATES", "L", "Subpart L\u2014What Requirements Must a Facility Meet to Employ H-1C Nonimmigrant Workers as Registered Nurses?", "", "\u00a7 655.1115 Element V\u2014What does \u201cno strike/lockout or layoff\u201d mean?", "DOL", "", "", "[65 FR 51149, Aug. 22, 2000, as amended at 75 FR 10405, Mar. 5, 2010]", "(a) The fifth attestation element requires that the facility attest that \u201cthere is not a strike or lockout in the course of a labor dispute, the facility did not lay off and will not lay off a registered nurse employed by the facility within the period beginning 90 days before and ending 90 days after the date of filing of any visa petition, and the employment of such an alien is not intended or designated to influence an election for a bargaining representative for registered nurses of the facility.\u201d Labor disputes for purposes of this attestation element relate only to those involving nurses providing nursing services; other health service occupations are not included. A facility which has filed a petition for H-1C nurses is also prohibited from interfering with the right of the nonimmigrant to join or organize a union.\n\n(b)  Notice of strike or lockout.  In order to remain in compliance with the no strike or lockout portion of this attestation element, the facility must notify ETA if a strike or lockout of nurses at the facility occurs during the 1 year validity period of the attestation. Within 3 days of the occurrence of such strike or lockout, the facility must submit to the Administrator, Office of Foreign Labor Certification, Employment and Training Administration, Department of Labor, 200 Constitution Avenue, NW., Room C-4312, Washington, DC 20210, by U.S. mail or private carrier, written notice of the strike or lockout. Upon receiving a notice described in this section from a facility, ETA will examine the documentation, and may consult with the union at the facility or other appropriate entities. If ETA determines that the strike or lockout is covered under USCIS regulation 8 CFR 214.2(h)(17),  Effect of a strike , for \u201cH\u201d nonimmigrants, ETA must certify to USCIS, in the manner set forth in that regulation, that a strike or other labor dispute involving a work stoppage of nurses is in progress at the facility.\n\n(c)  Lay off  of a U.S. nurse means that the employer has caused the nurse's loss of employment in circumstances  other than  where\u2014\n\n(1) A U.S. nurse has been discharged for inadequate performance, violation of workplace rules, or other reasonable work-related cause;\n\n(2) A U.S. nurse's departure or retirement is voluntary (to be assessed in light of the totality of the circumstances, under established principles concerning \u201cconstructive discharge\u201d of workers who are pressured to leave employment);\n\n(3) The grant or contract under which the work performed by the U.S. nurse is required and funded has expired, and without such grant or contract the nurse would not continue to be employed because there is no alternative funding or need for the position; or\n\n(4) A U.S. nurse who loses employment is offered, as an alternative to such loss, a similar employment opportunity with the same employer. The validity of the offer of a similar employment opportunity will be assessed in light of the following factors:\n\n(i) The offer is a  bona fide  offer, rather than an offer designed to induce the U.S. nurse to refuse or an offer made with the expectation that the worker will refuse;\n\n(ii) The offered job provides the U.S. nurse an opportunity similar to that provided in the job from which he/she is discharged, in terms such as a similar level of authority, discretion, and responsibility, a similar opportunity for advancement within the organization, and similar tenure and work scheduling;\n\n(iii) The offered job provides the U.S. nurse equivalent or higher compensation and benefits to those provided in the job from which he/she is discharged.\n\n(d)  Documentation.  The facility must include in its public access file, copies of all notices of strikes or other labor disputes involving a work stoppage of nurses at the facility (submitted to ETA under paragraph (b) of this section). The facility must retain in its non-public files, and make available in the event of an enforcement action pursuant to subpart M of this part, any existing documentation with respect to the departure of each U.S. nurse who left his/her employment with the facility in the period from 90 days before until 90 days after the facility's petition for H-1C nurse(s). The facility is also required to have a record of the terms of any offer of alternative employment to such a U.S. nurse and the nurse's response to the offer (which may be a note to the file or other record of the nurse's response), and to make such record available in the event of an enforcement action pursuant to subpart M."], ["20:20:3.0.2.1.27.11.41.1", 20, "Employees' Benefits", "V", "", "655", "PART 655\u2014TEMPORARY EMPLOYMENT OF FOREIGN WORKERS IN THE UNITED STATES", "M", "Subpart M\u2014What are the Department's enforcement obligations with respect to H-1C Attestations?", "", "\u00a7 655.1200 What enforcement authority does the Department have with respect to a facility's H-1C Attestations?", "DOL", "", "", "", "(a) The Administrator shall perform all the Secretary's investigative and enforcement functions under 8 U.S.C. 1182(m) and subparts L and M of this part.\n\n(b) The Administrator, either because of a complaint or otherwise, shall conduct such investigations as may be appropriate and, in connection therewith, enter and inspect such places and such records (and make transcriptions thereof), question such persons and gather such information as deemed necessary by the Administrator to determine compliance with the matters to which a facility has attested under section 212(m) of the INA (8 U.S.C. 1182(m)) and subparts L and M of this part.\n\n(c) A facility being investigated must make available to the Administrator such records, information, persons, and places as the Administrator deems appropriate to copy, transcribe, question, or inspect. A facility must fully cooperate with any official of the Department of Labor performing an investigation, inspection, or law enforcement function under 8 U.S.C. 1182(m) or subparts L or M of this part. Such cooperation shall include producing documentation upon request. The Administrator may deem the failure to cooperate to be a violation, and take such further actions as the Administrator considers appropriate.\n\nFederal criminal statutes prohibit certain interference with a Federal officer in the performance of official duties. 18 U.S.C. 111 and 1114.)\n\n(d) No facility may intimidate, threaten, restrain, coerce, blacklist, discharge, or in any manner discriminate against any person because such person has:\n\n(1) Filed a complaint or appeal under or related to section 212(m) of the INA (8 U.S.C. 1182(m)) or subpart L or M of this part;\n\n(2) Testified or is about to testify in any proceeding under or related to section 212(m) of the INA (8 U.S.C. 1182(m)) or subpart L or M of this part.\n\n(3) Exercised or asserted on behalf of himself/herself or others any right or protection afforded by section 212(m) of the INA (8 U.S.C. 1182(m)) or subpart L or M of this part.\n\n(4) Consulted with an employee of a legal assistance program or an attorney on matters related to the Act or to subparts L or M of this part or any other DOL regulation promulgated under 8 U.S.C. 1182(m).\n\n(5) In the event of such intimidation or restraint as are described in this paragraph, the Administrator may deem the conduct to be a violation and take such further actions as the Administrator considers appropriate.\n\n(e) A facility subject to subparts L and M of this part must maintain a separate file containing its Attestation and required documentation, and must make that file or copies thereof available to interested parties, as required by \u00a7 655.1150. In the event of a facility's failure to maintain the file, to provide access, or to provide copies, the Administrator may deem the conduct to be a violation and take such further actions as the Administrator considers appropriate.\n\n(f) No facility may seek to have an H-1C nurse, or any other nurse similarly employed by the employer, or any other employee waive rights conferred under the Act or under subpart L or M of this part. In the event of such waiver, the Administrator may deem the conduct to be a violation and take such further actions as the Administrator considers appropriate. This prohibition of waivers does not prevent agreements to settle litigation among private parties, and a waiver or modification of rights or obligations in favor of the Secretary shall be valid for purposes of enforcement of the provisions of the Act or subpart L and M of this part.\n\n(g) The Administrator shall, to the extent possible under existing law, protect the confidentiality of any complainant or other person who provides information to the Department."], ["20:20:3.0.2.1.27.11.41.10", 20, "Employees' Benefits", "V", "", "655", "PART 655\u2014TEMPORARY EMPLOYMENT OF FOREIGN WORKERS IN THE UNITED STATES", "M", "Subpart M\u2014What are the Department's enforcement obligations with respect to H-1C Attestations?", "", "\u00a7 655.1245 Who can appeal the ALJ's decision and what is the process?", "DOL", "", "", "[65 FR 51149, Aug. 22, 2000, as amended at 86 FR 1776, Jan. 11, 2021]", "(a) The Administrator or any interested party desiring review of the decision and order of an administrative law judge, including judicial review, must petition the Department's Administrative Review Board (Board) to review the ALJ's decision and order. To be effective, such petition must be received by the Board within 30 days of the date of the decision and order. Copies of the petition must be served on all parties and on the administrative law judge.\n\n(b) No particular form is prescribed for any petition for the Board's review permitted by this subpart. However, any such petition must:\n\n(1) Be dated;\n\n(2) Be typewritten or legibly written;\n\n(3) Specify the issue or issues stated in the administrative law judge's decision and order giving rise to such petition;\n\n(4) State the specific reason or reasons why the party petitioning for review believes such decision and order are in error;\n\n(5) Be signed by the party filing the petition or by an authorized representative of such party;\n\n(6) Include the address at which such party or authorized representative desires to receive further communications relating thereto; and\n\n(7) Attach copies of the administrative law judge's decision and order, and any other record documents which would assist the Board in determining whether review is warranted.\n\n(c) Whenever the Board determines to review the decision and order of an administrative law judge, a notice of the Board's determination must be served upon the administrative law judge and upon all parties to the proceeding within 30 days after the Board's receipt of the petition for review. If the Board determines that it will review the decision and order, the order shall be inoperative unless and until the Board issues an order affirming the decision and order.\n\n(d) Within 15 days of receipt of the Board's notice, the Office of Administrative Law Judges shall forward the complete hearing record to the Board.\n\n(e) The Board's notice shall specify:\n\n(1) The issue or issues to be reviewed;\n\n(2) The form in which submissions must be made by the parties (e.g., briefs, oral argument);\n\n(3) The time within which such submissions must be made.\n\n(f) All documents submitted to the Board shall be filed with the Administrative Review Board in accordance with 29 CFR part 26. Documents are not deemed filed with the Board until actually received by the Board. All documents, including documents filed by mail, shall be received by the Board either on or before the due date.\n\n(g) Copies of all documents filed with the Board must be served upon all other parties involved in the proceeding. Service upon the Administrator must be in accordance with \u00a7 655.1230(b).\n\n(h) The Board's final decision shall be issued within 180 days from the date of the notice of intent to review. The Board's decision shall be served upon all parties and the administrative law judge.\n\n(i) Upon issuance of the Board's decision, the Board shall transmit the entire record to the Chief Administrative Law Judge for custody in accordance with \u00a7 655.1250."], ["20:20:3.0.2.1.27.11.41.11", 20, "Employees' Benefits", "V", "", "655", "PART 655\u2014TEMPORARY EMPLOYMENT OF FOREIGN WORKERS IN THE UNITED STATES", "M", "Subpart M\u2014What are the Department's enforcement obligations with respect to H-1C Attestations?", "", "\u00a7 655.1250 Who is the official record keeper for these administrative appeals?", "DOL", "", "", "", "The official record of every completed administrative hearing procedure provided by subparts L and M of this part shall be maintained and filed under the custody and control of the Chief Administrative Law Judge. Upon receipt of a complaint seeking review of the final agency action in a United States District Court, the Chief Administrative Law Judge shall certify the official record and shall transmit such record to the clerk of the court."], ["20:20:3.0.2.1.27.11.41.12", 20, "Employees' Benefits", "V", "", "655", "PART 655\u2014TEMPORARY EMPLOYMENT OF FOREIGN WORKERS IN THE UNITED STATES", "M", "Subpart M\u2014What are the Department's enforcement obligations with respect to H-1C Attestations?", "", "\u00a7 655.1255 What are the procedures for debarment of a facility based on a finding of violation?", "DOL", "", "", "[75 FR 10406, Mar. 5, 2010]", "(a) The Administrator shall notify the Department of Homeland Security and ETA of the final determination of a violation by a facility upon the earliest of the following events:\n\n(1) Where the Administrator determines that there is a basis for a finding of violation by a facility, and no timely request for hearing is made under \u00a7 655.1220; or\n\n(2) Where, after a hearing, the administrative law judge issues a decision and order finding a violation by a facility, and no timely petition for review to the Board is made under \u00a7 655.1245; or\n\n(3) Where a petition for review is taken from an administrative law judge's decision and the Board either declines within 30 days to entertain the appeal, under \u00a7 655.1245(c), or the Board affirms the administrative law judge's determination; or\n\n(4) Where the administrative law judge finds that there was no violation by a facility, and the Board, upon review, issues a decision under \u00a7 655.1245(h), holding that a violation was committed by a facility.\n\n(b) U.S. Citizenship and Immigration Services, upon receipt of the Administrator's notice under paragraph (a) of this section, shall not approve petitions filed with respect to that employer under section 212(m) of the INA (8 U.S.C. 1182(m)) during a period of at least 12 months from the date of receipt of the Administrator's notification. The Administrator must provide USCIS with a recommendation as to the length of the debarment.\n\n(c) ETA, upon receipt of the Administrator's notice under paragraph (a) of this section, shall suspend the employer's attestation(s) under subparts L and M of this part, and shall not accept for filing any attestation submitted by the employer under subparts L and M of this part, for a period of 12 months from the date of receipt of the Administrator's notification or for a longer period if one is specified by the Department of Homeland Security for visa petitions filed by that employer under section 212(m) of the INA."], ["20:20:3.0.2.1.27.11.41.13", 20, "Employees' Benefits", "V", "", "655", "PART 655\u2014TEMPORARY EMPLOYMENT OF FOREIGN WORKERS IN THE UNITED STATES", "M", "Subpart M\u2014What are the Department's enforcement obligations with respect to H-1C Attestations?", "", "\u00a7 655.1260 Can Equal Access to Justice Act attorney fees be awarded?", "DOL", "", "", "", "A proceeding under subpart L or M of this part is not subject to the Equal Access to Justice Act, as amended, 5 U.S.C. 504. In such a proceeding, the administrative law judge shall have no authority to award attorney fees and/or other litigation expenses under the provisions of the Equal Access to Justice Act."], ["20:20:3.0.2.1.27.11.41.2", 20, "Employees' Benefits", "V", "", "655", "PART 655\u2014TEMPORARY EMPLOYMENT OF FOREIGN WORKERS IN THE UNITED STATES", "M", "Subpart M\u2014What are the Department's enforcement obligations with respect to H-1C Attestations?", "", "\u00a7 655.1205 What is the Administrator's responsibility with respect to complaints and investigations?", "DOL", "", "", "", "(a) The Administrator, through investigation, shall determine whether a facility has failed to perform any attested conditions, misrepresented any material facts in an Attestation (including misrepresentation as to compliance with regulatory standards), or otherwise violated the Act or subpart L or M of this part. The Administrator's authority applies whether an Attestation is expired or unexpired at the time a complaint is filed. (Note: Federal criminal statutes provide for fines and/or imprisonment for knowing and willful submission of false statements to the Federal Government. 18 U.S.C. 1001;  see also  18 U.S.C. 1546.)\n\n(b) Any aggrieved person or organization may file a complaint of a violation of the provisions of section 212(m) of the INA (8 U.S.C. 1182(m)) or subpart L or M of this part. No particular form of complaint is required, except that the complaint shall be written or, if oral, shall be reduced to writing by the Wage and Hour Division official who receives the complaint. The complaint must set forth sufficient facts for the Administrator to determine what part or parts of the Attestation or regulations have allegedly been violated. Upon the request of the complainant, the Administrator shall, to the extent possible under existing law, maintain confidentiality about the complainant's identity; if the complainant wishes to be a party to the administrative hearing proceedings under this subpart, the complainant shall then waive confidentiality. The complaint may be submitted to any local Wage and Hour Division office; the addresses of such offices are found in local telephone directories. Inquiries concerning the enforcement program and requests for technical assistance regarding compliance may also be submitted to the local Wage and Hour Division office.\n\n(c) The Administrator shall determine whether there is reasonable cause to believe that the complaint warrants investigation and, if so, shall conduct an investigation, within 180 days of the receipt of a complaint. If the Administrator determines that the complaint fails to present reasonable cause for an investigation, the Administrator shall so notify the complainant, who may submit a new complaint, with such additional information as may be necessary.\n\n(d) When an investigation has been conducted, the Administrator shall, within 180 days of the receipt of a complaint, issue a written determination, stating whether a basis exists to make a finding that the facility failed to meet a condition of its Attestation, made a misrepresentation of a material fact therein, or otherwise violated the Act or subpart L or M. The determination shall specify any sanctions imposed due to violations. The Administrator shall provide a notice of such determination to the interested parties and shall inform them of the opportunity for a hearing pursuant to \u00a7 655.1220."], ["20:20:3.0.2.1.27.11.41.3", 20, "Employees' Benefits", "V", "", "655", "PART 655\u2014TEMPORARY EMPLOYMENT OF FOREIGN WORKERS IN THE UNITED STATES", "M", "Subpart M\u2014What are the Department's enforcement obligations with respect to H-1C Attestations?", "", "\u00a7 655.1210 What penalties and other remedies may the Administrator impose?", "DOL", "", "", "", "(a) The Administrator may assess a civil money penalty not to exceed $1,000 per nurse per violation, with the total penalty not to exceed $10,000 per violation. The Administrator also may impose appropriate remedies, including the payment of back wages, the performance of attested obligations such as providing training, and reinstatement and/or wages for laid off U.S. nurses.\n\n(b) In determining the amount of civil money penalty to be assessed for any violation, the Administrator will consider the type of violation committed and other relevant factors. The matters which may be considered include, but are not limited to, the following:\n\n(1) Previous history of violation, or violations, by the facility under the Act and subpart L or M of this part;\n\n(2) The number of workers affected by the violation or violations;\n\n(3) The gravity of the violation or violations;\n\n(4) Efforts made by the violator in good faith to comply with the Attestation as provided in the Act and subparts L and M of this part;\n\n(5) The violator's explanation of the violation or violations;\n\n(6) The violator's commitment to future compliance, taking into account the public health, interest, or safety; and\n\n(7) The extent to which the violator achieved a financial gain due to the violation, or the potential financial loss or potential injury or adverse effect upon the workers.\n\n(c) The civil money penalty, back wages, and any other remedy determined by the Administrator to be appropriate, are immediately due for payment or performance upon the assessment by the Administrator, or the decision by an administrative law judge where a hearing is requested, or the decision by the Secretary where review is granted. The facility must remit the amount of the civil money penalty, by certified check or money order made payable to the order of \u201cWage and Hour Division, Labor.\u201d The remittance must be delivered or mailed to the Wage and Hour Division Regional Office for the area in which the violation(s) occurred. The payment of back wages, monetary relief, and/or the performance or any other remedy prescribed by the Administrator will follow procedures established by the Administrator. The facility's failure to pay the civil money penalty, back wages, or other monetary relief, or to perform any other assessed remedy, will result in the rejection by ETA of any future Attestation submitted by the facility until such payment or performance is accomplished.\n\n(d) The Federal Civil Penalties Inflation Adjustment Act of 1990, as amended (28 U.S.C. 2461 note), requires that inflationary adjustments to civil money penalties in accordance with a specified cost-of-living formula be made, by regulation, at least every four years. The adjustments are to be based on changes in the Consumer Price Index for all Urban Consumers (CPI-U) for the U.S. City Average for All Items. The adjusted amounts will be published in the  Federal Register.  The amount of the penalty in a particular case will be based on the amount of the penalty in effect at the time the violation occurs."], ["20:20:3.0.2.1.27.11.41.4", 20, "Employees' Benefits", "V", "", "655", "PART 655\u2014TEMPORARY EMPLOYMENT OF FOREIGN WORKERS IN THE UNITED STATES", "M", "Subpart M\u2014What are the Department's enforcement obligations with respect to H-1C Attestations?", "", "\u00a7 655.1215 How are the Administrator's investigation findings issued?", "DOL", "", "", "[75 FR 10406, Mar. 5, 2010]", "(a) The Administrator's determination, issued under \u00a7 655.1205(d), shall be served on the complainant, the facility, and other interested parties by personal service or by certified mail at the parties' last known addresses. Where service by certified mail is not accepted by the party, the Administrator may exercise discretion to serve the determination by regular mail. Where the complainant has requested confidentiality, the Administrator shall serve the determination in a manner which will not breach that confidentiality.\n\n(b) The Administrator's written determination required by \u00a7 655.1205(c) shall:\n\n(1) Set forth the determination of the Administrator and the reason or reasons therefore; prescribe any remedies or penalties including the amount of any unpaid wages due, the actions required for compliance with the facility Attestation, and the amount of any civil money penalty assessment and the reason or reasons therefore.\n\n(2) Inform the interested parties that they may request a hearing under \u00a7 655.1220.\n\n(3) Inform the interested parties that if a request for a hearing is not received by the Chief Administrative Law Judge within 15 days of the date of the determination, the determination of the Administrator shall become final and not appealable.\n\n(4) Set forth the procedure for requesting a hearing, and give the address of the Chief Administrative Law Judge.\n\n(5) Inform the parties that, under \u00a7 655.1255, the Administrator shall notify the Department of Homeland Security and ETA of the occurrence of a violation by the employer."], ["20:20:3.0.2.1.27.11.41.5", 20, "Employees' Benefits", "V", "", "655", "PART 655\u2014TEMPORARY EMPLOYMENT OF FOREIGN WORKERS IN THE UNITED STATES", "M", "Subpart M\u2014What are the Department's enforcement obligations with respect to H-1C Attestations?", "", "\u00a7 655.1220 Who can appeal the Administrator's findings and what is the process?", "DOL", "", "", "", "(a) Any interested party desiring review of a determination issued under \u00a7 655.1205(d), including judicial review, must make a request for an administrative hearing in writing to the Chief Administrative Law Judge at the address stated in the notice of determination. If such a request for an administrative hearing is timely filed, the Administrator's determination shall be inoperative unless and until the case is dismissed or the Administrative Law Judge issues an order affirming the decision.\n\n(b) An interested party may request a hearing in the following circumstances:\n\n(1) Where the Administrator determines that there is no basis for a finding of violation, the complainant or other interested party may request a hearing. In such a proceeding, the party requesting the hearing shall be the prosecuting party and the facility shall be the respondent; the Administrator may intervene as a party or appear as  amicus curiae  at any time in the proceeding, at the Administrator's discretion.\n\n(2) Where the Administrator determines that there is a basis for a finding of violation, the facility or other interested party may request a hearing. In such a proceeding, the Administrator shall be the prosecuting party and the facility shall be the respondent.\n\n(c) No particular form is prescribed for any request for hearing permitted by this part. However, any such request shall:\n\n(1) Be dated;\n\n(2) Be typewritten or legibly written;\n\n(3) Specify the issue or issues stated in the notice of determination giving rise to such request;\n\n(4) State the specific reason or reasons why the party requesting the hearing believes such determination is in error;\n\n(5) Be signed by the party making the request or by an authorized representative of such party; and\n\n(6) Include the address at which such party or authorized representative desires to receive further communications relating thereto.\n\n(d) The request for such hearing must be received by the Chief Administrative Law Judge, at the address stated in the Administrator's notice of determination, no later than 10 days after the date of the determination. An interested party which fails to meet this 10-day deadline for requesting a hearing may thereafter participate in the proceedings only by consent of the administrative law judge, either through intervention as a party under 29 CFR 18.10 (b) through (d) or through participation as an  amicus curiae  under 29 CFR 18.12.\n\n(e) The request may be filed in person, by facsimile transmission, by certified or regular mail, or by courier service. For the requesting party's protection, if the request is filed by mail, it should be certified mail. If the request is filed by facsimile transmission, the original of the request, signed by the requestor or authorized representative, must be filed within 10 days of the date of the Administrator's notice of determination.\n\n(f) Copies of the request for a hearing must be sent by the requestor to the Wage and Hour Division official who issued the Administrator's notice of determination, to the representative(s) of the Solicitor of Labor identified in the notice of determination, and to all known interested parties."], ["20:20:3.0.2.1.27.11.41.6", 20, "Employees' Benefits", "V", "", "655", "PART 655\u2014TEMPORARY EMPLOYMENT OF FOREIGN WORKERS IN THE UNITED STATES", "M", "Subpart M\u2014What are the Department's enforcement obligations with respect to H-1C Attestations?", "", "\u00a7 655.1225 What are the rules of practice before an ALJ?", "DOL", "", "", "", "(a) Except as specifically provided in this subpart, and to the extent they do not conflict with the provisions of this subpart, the \u201cRules of Practice and Procedure for Administrative Hearings Before the Office of Administrative Law Judges\u201d established by the Secretary at 29 CFR part 18 shall apply to administrative proceedings under this subpart.\n\n(b) As provided in the Administrative Procedure Act, 5 U.S.C. 556, any oral or documentary evidence may be received in proceedings under this part. The Federal Rules of Evidence and subpart B of the Rules of Practice and Procedure for Administrative Hearings Before the Office of Administrative Law Judges (29 CFR part 18, subpart B) do not apply, but principles designed to ensure production of relevant and probative evidence shall guide the admission of evidence. The administrative law judge may exclude evidence which is immaterial, irrelevant, or unduly repetitive."], ["20:20:3.0.2.1.27.11.41.7", 20, "Employees' Benefits", "V", "", "655", "PART 655\u2014TEMPORARY EMPLOYMENT OF FOREIGN WORKERS IN THE UNITED STATES", "M", "Subpart M\u2014What are the Department's enforcement obligations with respect to H-1C Attestations?", "", "\u00a7 655.1230 What time limits are imposed in ALJ proceedings?", "DOL", "", "", "", "(a) Under this subpart, a party may serve any pleading or document by regular mail. Service is complete upon mailing to the last known address. No additional time for filing or response is authorized where service is by mail. In the interest of expeditious proceedings, the administrative law judge may direct the parties to serve pleadings or documents by a method other than regular mail.\n\n(b) Two (2) copies of all pleadings and other documents in any administrative law judge proceeding shall be served on the attorneys for the Administrator. One copy must be served on the Associate Solicitor, Division of Fair Labor Standards, Office of the Solicitor, U.S. Department of Labor, 200 Constitution Avenue N.W., Washington, D.C. 20210, and one copy on the attorney representing the Administrator in the proceeding.\n\n(c) Time will be computed beginning with the day following the action and includes the last day of the period unless it is a Saturday, Sunday, or Federally-observed holiday, in which case the time period includes the next business day."], ["20:20:3.0.2.1.27.11.41.8", 20, "Employees' Benefits", "V", "", "655", "PART 655\u2014TEMPORARY EMPLOYMENT OF FOREIGN WORKERS IN THE UNITED STATES", "M", "Subpart M\u2014What are the Department's enforcement obligations with respect to H-1C Attestations?", "", "\u00a7 655.1235 What are the ALJ proceedings?", "DOL", "", "", "", "(a) Upon receipt of a timely request for a hearing filed in accordance with \u00a7 655.1220, the Chief Administrative Law Judge shall appoint an administrative law judge to hear the case.\n\n(b) Within seven (7) days following the assignment of the case, the administrative law judge shall notify all interested parties of the date, time, and place of the hearing. All parties shall be given at least five (5) days notice of such hearing.\n\n(c) The date of the hearing shall be not more than 60 days from the date of the Administrator's determination. Because of the time constraints imposed by the Act, no requests for postponement shall be granted except for compelling reasons and by consent of all the parties to the proceeding.\n\n(d) The administrative law judge may prescribe a schedule by which the parties are permitted to file a pre-hearing brief or other written statement of fact or law. Any such brief or statement shall be served upon each other party in accordance with \u00a7 655.1230. Posthearing briefs will not be permitted except at the request of the administrative law judge. When permitted, any such brief shall be limited to the issue or issues specified by the administrative law judge, shall be due within the time prescribed by the administrative law judge, and shall be served on each other party in accordance with \u00a7 655.1230."], ["20:20:3.0.2.1.27.11.41.9", 20, "Employees' Benefits", "V", "", "655", "PART 655\u2014TEMPORARY EMPLOYMENT OF FOREIGN WORKERS IN THE UNITED STATES", "M", "Subpart M\u2014What are the Department's enforcement obligations with respect to H-1C Attestations?", "", "\u00a7 655.1240 When and how does an ALJ issue a decision?", "DOL", "", "", "", "(a) Within 90 days after receipt of the transcript of the hearing, the administrative law judge shall issue a decision.\n\n(b) The decision of the administrative law judge shall include a statement of findings and conclusions, with reasons and basis therefore, upon each material issue presented on the record. The decision shall also include an appropriate order which may affirm, deny, reverse, or modify, in whole or in part, the determination of the Administrator; the reason or reasons for such order shall be stated in the decision. The administrative law judge shall not render determinations as to the legality of a regulatory provision or the constitutionality of a statutory provision.\n\n(c) The decision shall be served on all parties in person or by certified or regular mail."], ["20:20:3.0.2.1.27.12.41.1", 20, "Employees' Benefits", "V", "", "655", "PART 655\u2014TEMPORARY EMPLOYMENT OF FOREIGN WORKERS IN THE UNITED STATES", "N", "Subpart N\u2014Labor Certification Process for Temporary Agricultural Employment in the United States (H-2A Workers)", "", "\u00a7 655.1290 Purpose and scope of subpart B.", "DOL", "", "", "", "This subpart sets out the procedures established by the Secretary of the United States Department of Labor (the Secretary) to acquire information sufficient to make factual determinations of:\n\n(a) Whether there are sufficient able, willing, and qualified U.S. workers available to perform the temporary and seasonal agricultural employment for which an employer desires to import nonimmigrant foreign workers (H-2A workers); and\n\n(b) Whether the employment of H-2A workers will adversely affect the wages and working conditions of workers in the U.S. similarly employed."], ["20:20:3.0.2.1.27.12.41.10", 20, "Employees' Benefits", "V", "", "655", "PART 655\u2014TEMPORARY EMPLOYMENT OF FOREIGN WORKERS IN THE UNITED STATES", "N", "Subpart N\u2014Labor Certification Process for Temporary Agricultural Employment in the United States (H-2A Workers)", "", "\u00a7 655.1306 Assurances and obligations of H-2A Labor Contractors.", "DOL", "", "", "", "(a) The pre-filing activity requirements set forth in \u00a7 655.102 are modified as follows for H-2ALCs:\n\n(1) The job order for an H-2ALC may contain work locations in multiple areas of intended employment, and may be submitted to any one of the SWAs having jurisdiction over the anticipated work areas. The SWA receiving the job order shall promptly transmit, on behalf of the employer, a copy of its active job order to all States listed in the application as anticipated worksites, as well as those States, if any, designated by the Secretary as traditional or expected labor supply States for each area in which the employer's work is to be performed. Each SWA shall keep the H-2ALC's job order posted until the end of the recruitment period, as set forth in \u00a7 655.102(f)(3), for the area of intended employment that is covered by the SWA. SWAs in States that have been designated as traditional or expected labor supply States for more than one area of intended of employment that are listed on an application shall keep the H-2ALC's job order posted until the end of the applicable recruitment period that is last in time, and may make referrals for job opportunities in any area of intended employment that is still in an active recruitment period, as defined by \u00a7 655.102(f)(3).\n\n(2) The H-2ALC must conduct separate positive recruitment under \u00a7 655.102(g) through (i) for each area of intended employment in which the H-2ALC intends to perform work, but need not conduct separate recruitment for each work location within a single area of intended employment. The positive recruitment for each area of intended employment must list the name and location of each fixed-site agricultural business to which the H-2ALC expects to provide H-2A workers, the expected beginning and ending dates when the H-2ALC will be providing the workers to each fixed site, and a description of the crops and activities the workers are expected to perform at such fixed site. Such positive recruitment must be conducted pre-filing for the first area of intended employment, but must be started no more than 75 and no fewer than 60 days before the listed arrival date (or the amended date, if applicable) for each subsequent area of intended employment. For each area of intended employment, the advertising that must be placed in any applicable States designated as traditional or expected labor supply States must be placed at the same time as the placement of other positive recruitment for the area of intended employment in accordance with \u00a7 655.102(i)(2).\n\n(3) The job order and the positive recruitment in each area of intended employment may require that workers complete the remainder of the H-2ALC's itinerary.\n\n(4) An H-2ALC who hires U.S. workers during the course of its itinerary, and accordingly releases one or more of its H-2A workers, is eligible for the release from the three-quarters guarantee with respect to the released H-2A workers that is provided for in \u00a7 655.104(i)(4).\n\n(5) An H-2ALC may amend its application subsequent to submission in accordance with \u00a7 655.107(d)(3) to account for new or changed worksites or areas of intended employment during the course of the itinerary in the following manner:\n\n(i) If the additional worksite(s) are in the same area(s) of intended employment as represented on the  Application for Temporary Employment Certification,  the H-2ALC is not required to re-recruit in those areas of intended employment if that recruitment has been completed and if the job duties at the new work sites are similar to those already covered by the application.\n\n(ii) If the additional worksite(s) are outside the area(s) of intended employment represented on the  Application for Temporary Employment Certification,  the H-2ALC must submit in writing the new area(s) of intended employment and explain the reasons for the amendment of the labor certification itinerary. The CO will order additional recruitment in accordance with \u00a7 655.102(d).\n\n(iii) For any additional worksite not included on the original application that necessitates a change in housing of H-2A workers, the H-2ALC must secure the statement of housing as described in paragraph (b)(6) of this section and obtain an inspection of such housing from the SWA in the area of intended employment.\n\n(iv) Where additional recruitment is required under paragraphs (a)(5)(i) or (a)(5)(ii) of this section, the CO shall allow it to take place on an expedited basis, where possible, so as to allow the amended dates of need to be met.\n\n(6) Consistent with paragraph (a)(5) of this section, no later than 30 days prior to the commencement of employment in each area of intended employment in the itinerary of an H-2ALC, the SWA having jurisdiction over that area of intended employment must complete the housing inspections for any employer-provided housing to be used by the employees of the H-2ALC.\n\n(7) To satisfy the requirements of \u00a7 655.102(h), the H-2ALC must contact all U.S employees that worked for the H-2ALC during the previous season, except those excluded by that section, before filing its application, and must advise those workers that a separate job opportunity exists for each area of intended employment that is covered by the application. The employer may advise contacted employees that for any given job opportunity, workers may be required to complete the remainder of the H-2ALC's itinerary.\n\n(b) In addition to the assurances and obligations listed in \u00a7 655.105, H-2ALC applicants are also required to:\n\n(1) Provide the MSPA Farm Labor Contractor (FLC) certificate of registration number and expiration date if required under MSPA at 29 U.S.C. 1801  et seq.,  to have such a certificate;\n\n(2) Identify the farm labor contracting activities the H-2ALC is authorized to perform as an FLC under MSPA as shown on the FLC certificate of registration, if required under MSPA at 29 U.S.C. 1801  et seq.,  to have such a certificate of registration;\n\n(3) List the name and location of each fixed-site agricultural business to which the H-2A Labor Contractor expects to provide H-2A workers, the expected beginning and ending dates when the H-2ALC will be providing the workers to each fixed site, and a description of the crops and activities the workers are expected to perform at such fixed site;\n\n(4) Provide proof of its ability to discharge financial obligations under the H-2A program by attesting that it has obtained a surety bond as required by 29 CFR 501.8, stating on the application the name, address, phone number, and contact person for the surety, and providing the amount of the bond (as calculated pursuant to 29 CFR 501.8) and any identifying designation utilized by the surety for the bond;\n\n(5) Attest that it has engaged in, or will engage in within the timeframes required by \u00a7 655.102 as modified by \u00a7 655.106(a), recruitment efforts in each area of intended employment in which it has listed a fixed-site agricultural business; and\n\n(6) Attest that it will be providing housing and transportation that complies with the applicable housing standards in \u00a7 655.104(d) or that it has obtained from each fixed-site agricultural business that will provide housing or transportation to the workers a written statement stating that:\n\n(i) All housing used by workers and owned, operated or secured by the fixed-site agricultural business complies with the applicable housing standards in \u00a7 655.104(d); and\n\n(ii) All transportation between the worksite and the workers' living quarters that is provided by the fixed-site agricultural business complies with all applicable Federal, State, or local laws and regulations and will provide, at a minimum, the same vehicle safety standards, driver licensure, and vehicle insurance as required under 29 U.S.C. 1841 and 29 CFR part 500, subpart D, except where workers' compensation is used to cover such transportation as described in \u00a7 655.104(h)(3)."], ["20:20:3.0.2.1.27.12.41.11", 20, "Employees' Benefits", "V", "", "655", "PART 655\u2014TEMPORARY EMPLOYMENT OF FOREIGN WORKERS IN THE UNITED STATES", "N", "Subpart N\u2014Labor Certification Process for Temporary Agricultural Employment in the United States (H-2A Workers)", "", "\u00a7 655.1307 Processing of applications.", "DOL", "", "", "", "(a)  Processing.  (1) Upon receipt of the application, the CO will promptly review the application for completeness and an absence of errors that would prevent certification, and for compliance with the criteria for certification. The CO will make a determination to certify, deny, or issue a Notice of Deficiency prior to making a Final Determination on the application. Applications requesting that zero job opportunities be certified for H-2A employment because the employer has been able to recruit a sufficient number of U.S. workers must comply with other requirements for H-2A applications and must be supported by a recruitment report, in which case the application will be accepted but will then be denied. Criteria for certification, as used in this subpart, include, but are not limited to, whether the employer has established the need for the agricultural services or labor to be performed on a temporary or seasonal basis; made all the assurances and met all the obligations required by \u00a7 655.105, and/or, if an H-2ALC, by \u00a7 655.106; complied with the timeliness requirements in \u00a7 655.102; and complied with the recruitment obligations required by \u00a7\u00a7 655.102 and 655.103.\n\n(2) Unless otherwise noted, any notice or request sent by the CO or OFLC to an applicant requiring a response shall be sent by means normally assuring next-day delivery, to afford the applicant sufficient time to respond. The employer's response shall be considered filed with the Department when sent (by mail, certified mail, or any other means indicated to be acceptable by the CO) to the Department, which may be demonstrated, for example, by a postmark.\n\n(b)  Notice of deficiencies.  (1) If the CO determines that the employer has made all necessary attestations and assurances, but the application fails to comply with one or more of the criteria for certification in paragraph (a) of this section, the CO will promptly notify the employer within 7 calendar days of the CO's receipt of the application.\n\n(2) The notice will:\n\n(i) State the reason(s) why the application fails to meet the criteria for temporary labor certification, citing the relevant regulatory standard(s);\n\n(ii) Offer the employer an opportunity to submit a modified application within 5 business days from date of receipt, stating the modification that is needed for the CO to accept the application for consideration;\n\n(iii) Except as provided for under paragraph (b)(2)(iv) of this section, state that the CO's determination on whether to grant or deny the  Application for Temporary Employment Certification  will be made no later than 30 calendar days before the date of need, provided that the employer submits the requested modification to the application within 5 business days and in a manner specified by the CO;\n\n(iv) Where the CO determines the employer failed to comply with the recruitment obligations required by \u00a7\u00a7 655.102 and 655.103, offer the employer an opportunity to correct its recruitment and conduct it on an expedited schedule. The CO shall specify the positive recruitment requirements, request the employer submit proof of corrected advertisement and an initial recruitment report meeting the requirements of \u00a7 655.102(k) no earlier than 48 hours after the last corrected advertisement is printed, and state that the CO's determination on whether to grant or deny the  Application for Temporary Employment Certification  will be made within 5 business days of receiving the required documentation, which may be a date later than 30 days before the date of need:\n\n(v) Offer the employer an opportunity to request an expedited administrative review or a de novo administrative hearing before an ALJ, of the  Notice of Deficiency.  The notice will state that in order to obtain such a review or hearing, the employer, within 5 business days of the receipt of the notice, must file by facsimile or other means normally assuring next day delivery, a written request to the Chief Administrative Law Judge of DOL and simultaneously serve a copy on the CO. The notice will also state that the employer may submit any legal arguments that the employer believes will rebut the basis of the CO's action; and\n\n(vi) State that if the employer does not comply with the requirements under paragraphs (b)(2)(ii) and (iv) of this section or request an expedited administrative judicial review or a de novo hearing before an ALJ within the 5 business days the CO will deny the application in accordance with the labor certification determination provisions in \u00a7 655.109.\n\n(c)  Submission of modified applications.  (1) If the CO notifies the employer of any deficiencies within the 7 calendar day timeframe set forth in paragraph (b)(1) of this section, the date by which the CO's Final Determination is required by statute to be made will be postponed by 1 day for each day that passes beyond the 5 business-day period allowed under paragraph (b)(2)(ii) of this section to submit a modified application.\n\n(2) Where the employer submits a modified application as required by the CO, and the CO approves the modified application, the CO will not deny the application based solely on the fact that it now does not meet the timeliness requirements for filing applications.\n\n(3) If the modified application is not approved, the CO will deny the application in accordance with the labor certification determination provisions in \u00a7 655.109.\n\n(d)  Amendments to applications.  (1) Applications may be amended at any time before the CO's certification determination to increase the number of workers requested in the initial application by not more than 20 percent (50 percent for employers requesting less than 10 workers) without requiring an additional recruitment period for U.S. workers. Requests for increases above the percent prescribed, without additional recruitment, may be approved by the CO only when the request is submitted in writing, the need for additional workers could not have been foreseen, and the crops or commodities will be in jeopardy prior to the expiration of an additional recruitment period.\n\n(2) Applications may be amended to make minor changes in the total period of employment, but only if a written request is submitted to the CO and approved in advance. In considering whether to approve the request, the CO will review the reason(s) for the request, determine whether the reason(s) are on the whole justified, and take into account the effect(s) of a decision to approve on the adequacy of the underlying test of the domestic labor market for the job opportunity. If a request for a change in the start date of the total period of employment is made after workers have departed for the employer's place of work, the CO may only approve the change if the request is accompanied by a written assurance signed and dated by the employer that all such workers will be provided housing and subsistence, without cost to the workers, until work commences. Upon acceptance of an amendment, the CO will submit to the SWA any necessary modification to the job order.\n\n(3) Other amendments to the application, including elements of the job offer and the place of work, may be approved by the CO if the CO determines the proposed amendment(s) are justified by a business reason and will not prevent the CO from making the labor certification determination required under \u00a7 655.109. Requested amendments will be reviewed as quickly as possible, taking into account revised dates of need for work locations associated with the amendment.\n\n(e)  Appeal procedures.  With respect to either a Notice of Deficiency issued under paragraph (b) of this section, the denial of a requested amendment under paragraph (d) of this section, or a notice of denial issued under \u00a7 655.109(e), if the employer timely requests an expedited administrative review or  de novo  hearing before an ALJ, the procedures set forth in \u00a7 655.115 will be followed."], ["20:20:3.0.2.1.27.12.41.12", 20, "Employees' Benefits", "V", "", "655", "PART 655\u2014TEMPORARY EMPLOYMENT OF FOREIGN WORKERS IN THE UNITED STATES", "N", "Subpart N\u2014Labor Certification Process for Temporary Agricultural Employment in the United States (H-2A Workers)", "", "\u00a7 655.1308 Offered wage rate.", "DOL", "", "", "", "(a)  Highest wage.  To comply with its obligation under \u00a7 655.105(g), an employer must offer a wage rate that is the highest of the AEWR in effect at the time recruitment for a position is begun, the prevailing hourly wage or piece rate, or the Federal or State minimum wage.\n\n(b)  Wage rate request.  The employer must request and obtain a wage rate determination from the NPC, on a form prescribed by ETA, before commencing any recruitment under this subpart, except where specifically exempted from this requirement by these regulations.\n\n(c)  Validity of wage rate.  The recruitment must begin within the validity period of the wage determination obtained from the NPC. Recruitment for this purpose begins when the job order is accepted by the SWA for posting.\n\n(d)  Wage offer.  The employer must offer and advertise in its recruitment a wage at least equal to the wage rate required by paragraph (a) of this section.\n\n(e)  Adverse effect wage rate.  The AEWR will be based on published wage data for the occupation, skill level, and geographical area from the Bureau of Labor Statistics (BLS), Occupational Employment Statistics (OES) survey. The NPC will obtain wage information on the AEWR using the On-line Wage Library (OWL) found on the Foreign Labor Certification Data Center Web site ( http://www.flcdatacenter.com/ ). This wage shall not be less than the July 24, 2009 Federal minimum wage of $7.25.\n\n(f)  Wage determination.  The NPC must enter the wage rate determination on a form it uses, indicate the source, and return the form with its endorsement to the employer.\n\n(g)  Skill level.  (1) Level I wage rates are assigned to job offers for beginning level employees who have a basic understanding of the occupation. These employees perform routine tasks that require limited, if any, exercise of judgment. The tasks provide experience and familiarization with the employer's methods, practices, and programs. The employees may perform higher level work for training and developmental purposes. These employees work under close supervision and receive specific instructions on required tasks and results expected. Their work is closely monitored and reviewed for accuracy.\n\n(2) Level II wage rates are assigned to job offers for employees who have attained, through education or experience, a good understanding of the occupation. These employees perform moderately complex tasks that require limited judgment. An indicator that the job request warrants a wage determination at Level II would be a requirement for years of education and/or experience that are generally required as described in the O*NET Job Zones.\n\n(3) Level III wage rates are assigned to job offers for employees who have a sound understanding of the occupation and have attained, either through education or experience, special skills or knowledge. These employees perform tasks that require exercising judgment and may coordinate the activities of other staff. They may have supervisory authority over those staff. A requirement for years of experience or educational degrees that are at the higher ranges indicated in the O*NET Job Zones would be an indicator that a Level III wage should be considered. Frequently, key words in the job title can be used as indicators that an employer's job offer is for an experienced worker. Words such as lead, senior, crew chief, or journeyman would be indicators that a Level III wage should be considered.\n\n(4) Level IV wage rates are assigned to job offers for employees who have sufficient experience in the occupation to plan and conduct work requiring judgment and the independent evaluation, selection, modification, and application of standard procedures and techniques. Such employees receive only minimal guidance and their work is reviewed only for application of sound judgment and effectiveness in meeting the establishment's procedures and expectations. They generally have management and/or supervisory responsibilities.\n\n(h)  Retention of documentation.  An employer filing an  Application for Temporary Employment Certification  must maintain documentation of its wage determination from the NPC as required in this subpart and be prepared to submit this documentation with the filing of its application. The documentation required in this subpart must be retained for a period of no less than 3 years from the date of the certification. There is no record retention requirement for applications (and supporting documentation) that are denied."], ["20:20:3.0.2.1.27.12.41.13", 20, "Employees' Benefits", "V", "", "655", "PART 655\u2014TEMPORARY EMPLOYMENT OF FOREIGN WORKERS IN THE UNITED STATES", "N", "Subpart N\u2014Labor Certification Process for Temporary Agricultural Employment in the United States (H-2A Workers)", "", "\u00a7 655.1309 Labor certification determinations.", "DOL", "", "", "", "(a)  COs.  The Administrator, OFLC is the Department's National CO. The Administrator, OFLC, and the CO(s) in the NPC(s) (by virtue of delegation from the Administrator, OFLC), have the authority to certify or deny applications for temporary employment certification under the H-2A nonimmigrant classification. If the Administrator, OFLC has directed that certain types of temporary labor certification applications or specific applications under the H-2A nonimmigrant classification be handled by the National OFLC, the Director(s) of the NPC(s) will refer such applications to the Administrator, OFLC.\n\n(b)  Determination.  No later than 30 calendar days before the date of need, as identified in the  Application for Temporary Employment Certification , except as provided for under \u00a7 655.107(c) for modified applications, or applications not otherwise meeting certification criteria by that date, the CO will make a determination either to grant or deny the  Application for Temporary Employment Certification.  The CO will grant the application if and only if: the employer has met the requirements of this subpart, including the criteria for certification set forth in \u00a7 655.107(a), and thus the employment of the H-2A workers will not adversely affect the wages and working conditions of similarly employed U.S. workers.\n\n(c)  Notification.  The CO will notify the employer in writing (either electronically or by mail) of the labor certification determination.\n\n(d)  Approved certification.  If temporary labor certification is granted, the CO must send the certified  Application for Temporary Employment Certification  and a Final Determination letter to the employer, or, if appropriate, to the employer's agent or attorney. The Final Determination letter will notify the employer to file the certified application and any other documentation required by USCIS with the appropriate USCIS office and to continue to cooperate with the SWA by accepting all referrals of eligible U.S. workers who apply (or on whose behalf an application is made) for the job opportunity until the end of the recruitment period as set forth in \u00a7 655.102(f)(3). However, the employer will not be required to accept referrals of eligible U.S. workers once it has hired or extended employment offers to eligible U.S. workers equal to the number of H-2A workers sought.\n\n(e)  Denied certification.  If temporary labor certification is denied, the Final Determination letter will be sent to the employer by means normally assuring next-day delivery. The Final Determination Letter will:\n\n(1) State the reasons certification is denied, citing the relevant regulatory standards and/or special procedures;\n\n(2) If applicable, address the availability of U.S. workers in the occupation as well as the prevailing benefits, wages, and working conditions of similarly employed U.S. workers in the occupation and/or any applicable special procedures;\n\n(3) Offer the applicant an opportunity to request an expedited administrative review, or a  de novo  administrative hearing before an ALJ, of the denial. The notice must state that in order to obtain such a review or hearing, the employer, within 7 calendar days of the date of the notice, must file by facsimile (fax), telegram, or other means normally assuring next day delivery, a written request to the Chief Administrative Law Judge of DOL (giving the address) and simultaneously serve a copy on the CO. The notice will also state that the employer may submit any legal arguments which the employer believes will rebut the basis of the CO's action; and\n\n(4) State that if the employer does not request an expedited administrative judicial review or a  de novo  hearing before an ALJ within the 7 calendar days, the denial is final and the Department will not further consider that application for temporary alien agricultural labor certification.\n\n(f)  Partial certification.  The CO may, to ensure compliance with all regulatory requirements, issue a partial certification, reducing either the period of need or the number of H-2A workers being requested or both for certification, based upon information the CO receives in the course of processing the temporary labor certification application, an audit, or otherwise. The number of workers certified shall be reduced by one for each referred U.S. worker who is qualified, able, available and willing. If a partial labor certification is issued, the Final Determination letter will:\n\n(1) State the reasons for which either the period of need and/or the number of H-2A workers requested has been reduced, citing the relevant regulatory standards and/or special procedures;\n\n(2) If applicable, address the availability of U.S. workers in the occupation;\n\n(3) Offer the applicant an opportunity to request an expedited administrative review, or a  de novo  administrative hearing before an ALJ, of the decision. The notice will state that in order to obtain such a review or hearing, the employer, within 7 calendar days of the date of the notice, will file by facsimile or other means normally assuring next day delivery a written request to the Chief Administrative Law Judge of DOL (giving the address) and simultaneously serve a copy on the CO. The notice will also state that the employer may submit any legal arguments which the employer believes will rebut the basis of the CO's action; and\n\n(4) State that if the employer does not request an expedited administrative judicial review or a  de novo  hearing before an ALJ within the 7 calendar days, the denial is final and the Department will not further consider that application for temporary alien agricultural labor certification.\n\n(g)  Appeal procedures.  If the employer timely requests an expedited administrative review or  de novo  hearing before an ALJ under paragraph (e)(3) or (f)(3) of this section, the procedures at \u00a7 655.115 will be followed.\n\n(h)  Payment of processing fees.  A determination by the CO to grant an  Application for Temporary Employment Certification  in whole or in part under paragraph (d) or (f) of this section will include a bill for the required fees. Each employer of H-2A workers under the  Application for Temporary Employment Certification  (except joint employer associations, which shall not be assessed a fee in addition to the fees assessed to the members of the association) must pay in a timely manner a non-refundable fee upon issuance of the certification granting the application (in whole or in part), as follows:\n\n(1)  Amount.  The application fee for each employer receiving a temporary agricultural labor certification is $100 plus $10 for each H-2A worker certified under the  Application for Temporary Employment Certification , provided that the fee to an employer for each temporary agricultural labor certification received will be no greater than $1,000. There is no additional fee to the association filing the application. The fees must be paid by check or money order made payable to \u201cUnited States Department of Labor.\u201d In the case of H-2A employers that are members of an agricultural association acting as a joint employer applying on their behalf, the aggregate fees for all employers of H-2A workers under the application must be paid by one check or money order.\n\n(2)  Timeliness.  Fees received by the CO no more than 30 days after the date the temporary labor certification is granted will be considered timely. Non-payment of fees by the date that is 30 days after the issuance of the certification will be considered a substantial program violation and subject to the procedures in \u00a7 655.115."], ["20:20:3.0.2.1.27.12.41.14", 20, "Employees' Benefits", "V", "", "655", "PART 655\u2014TEMPORARY EMPLOYMENT OF FOREIGN WORKERS IN THE UNITED STATES", "N", "Subpart N\u2014Labor Certification Process for Temporary Agricultural Employment in the United States (H-2A Workers)", "", "\u00a7 655.1310 Validity and scope of temporary labor certifications.", "DOL", "", "", "", "(a)  Validity period.  A temporary labor certification is valid for the duration of the job opportunity for which certification is granted to the employer. Except as provided in paragraph and (d) of this section, the validity period is that time between the beginning and ending dates of certified employment, as listed on the  Application for Temporary Employment Certification.  The certification expires on the last day of authorized employment.\n\n(b)  Scope of validity.  Except as provided in paragraphs (c) and (d) of this section, a temporary labor certification is valid only for the number of H-2A workers, the area of intended employment, the specific occupation and duties, and the employer(s) specified on the certified  Application for Temporary Employment Certification  (as originally filed or as amended) and may not be transferred from one employer to another.\n\n(c)  Scope of validity\u2014associations \u2014(1)  Certified applications.  If an association is requesting temporary labor certification as a joint employer, the certified  Application for Temporary Employment Certification  will be granted jointly to the association and to each of the association's employer members named on the application. Workers authorized by the temporary labor certification may be transferred among its certified employer members to perform work for which the temporary labor certification was granted, provided the association controls the assignment of such workers and maintains a record of such assignments. All temporary agricultural labor certifications to associations may be used for the certified job opportunities of any of its employer members named on the application. If an association is requesting temporary labor certification as a sole employer, the certified  Application for Temporary Employment Certification  is granted to the association only.\n\n(2)  Ineligible employer-members.  Workers may not be transferred or referred to an association's employer member if that employer member has been debarred from participation in the H-2A program.\n\n(d)  Extensions on period of employment \u2014(1)  Short-term extension.  An employer who seeks an extension of 2 weeks or less of the certified  Application for Temporary Employment Certification  must apply for such extension to DHS. If DHS grants the extension, the corresponding  Application for Temporary Employment Certification  will be deemed extended for such period as is approved by DHS.\n\n(2)  Long-term extension.  For extensions beyond 2 weeks, an employer may apply to the CO at any time for an extension of the period of employment on the certified  Application for Temporary Employment Certification  for reasons related to weather conditions or other factors beyond the control of the employer (which may include unforeseen changes in market conditions), provided that the employer's need for an extension is supported in writing, with documentation showing that the extension is needed and that the need could not have been reasonably foreseen by the employer. The CO will grant or deny the request for extension of the period of employment on the  Application for Temporary Employment Certification  based on the available information, and will notify the employer of the decision in writing. The employer may appeal a denial for a request of an extension in accordance with the procedures contained in \u00a7 655.115. The CO will not grant an extension where the total work contract period under that application and extensions would be 12 months or more, except in extraordinary circumstances.\n\n(e)  Requests for determinations based on nonavailability of able, willing, available, eligible, and qualified U.S. workers \u2014(1)  Standards for requests.  If a temporary labor certification has been partially granted or denied based on the CO's determination that able, willing, available, eligible, and qualified U.S. workers are available, and, on or after 30 calendar days before the date of need, some or all of those U.S. workers are, in fact, no longer able, willing, eligible, qualified, or available, the employer may request a new temporary labor certification determination from the CO. Prior to making a new determination the CO will promptly ascertain (which may be through the SWA or other sources of information on U.S. worker availability) whether specific able, willing, eligible and qualified replacement U.S. workers are available or can be reasonably expected to be present at the employer's establishment within 72 hours from the date the employer's request was received. The CO will expeditiously, but in no case later than 72 hours after the time a complete request (including the signed statement included in paragraph (e)(2) of this section) is received, make a determination on the request. An employer may appeal a denial of such a determination in accordance with the procedures contained in \u00a7 655.115.\n\n(2)  Unavailability of U.S. workers.  The employer's request for a new determination must be made directly to the CO by telephone or electronic mail, and must be confirmed by the employer in writing as required by this paragraph. If the employer telephonically or via electronic mail requests the new determination by asserting solely that U.S. workers have become unavailable, the employer must submit to the CO a signed statement confirming such assertion. If such signed statement is not received by the CO within 72 hours of the CO's receipt of the request for a new determination, the CO will deny the request.\n\n(3)  Notification of determination.  If the CO determines that U.S. workers have become unavailable and cannot identify sufficient specific able, willing, eligible, and qualified U.S. workers who are or who are likely to be available, the CO will grant the employer's request for a new determination. However, this does not preclude an employer from submitting subsequent requests for new determinations, if warranted, based on subsequent facts concerning purported nonavailability of U.S. workers or referred workers not being eligible workers or not able, willing, or qualified because of lawful job-related reasons."], ["20:20:3.0.2.1.27.12.41.15", 20, "Employees' Benefits", "V", "", "655", "PART 655\u2014TEMPORARY EMPLOYMENT OF FOREIGN WORKERS IN THE UNITED STATES", "N", "Subpart N\u2014Labor Certification Process for Temporary Agricultural Employment in the United States (H-2A Workers)", "", "\u00a7 655.1311 Required departure.", "DOL", "", "", "", "(a)  Limit to worker's stay.  As defined further in DHS regulations, a temporary labor certification limits the authorized period of stay for an H-2A worker.  See  8 CFR 214.2(h). A foreign worker may not remain beyond his or her authorized period of stay, as established by DHS, which is based upon the validity period of the labor certification under which the H-2A worker is employed, nor beyond separation from employment prior to completion of the H-2A contract, absent an extension or change of such worker's status under DHS regulations.\n\n(b)  Notice to worker.  Upon establishment of a program by DHS for registration of departure, an employer must notify any H-2A worker that when the worker departs the U.S. by land at the conclusion of employment as provided in paragraph (a) of this section, the worker must register such departure at the place and in the manner prescribed by DHS."], ["20:20:3.0.2.1.27.12.41.16", 20, "Employees' Benefits", "V", "", "655", "PART 655\u2014TEMPORARY EMPLOYMENT OF FOREIGN WORKERS IN THE UNITED STATES", "N", "Subpart N\u2014Labor Certification Process for Temporary Agricultural Employment in the United States (H-2A Workers)", "", "\u00a7 655.1312 Audits.", "DOL", "", "", "", "(a)  Discretion.  The Department will conduct audits of temporary labor certification applications for which certification has been granted. The applications selected for audit will be chosen within the sole discretion of the Department.\n\n(b)  Audit letter.  Where an application is selected for audit, the CO will issue an audit letter to the employer/applicant. The audit letter will:\n\n(1) State the documentation that must be submitted by the employer;\n\n(2) Specify a date, no fewer than 14 days and no more than 30 days from the date of the audit letter, by which the required documentation must be received by the CO; and\n\n(3) Advise that failure to comply with the audit process may result in a finding by the CO to:\n\n(i) Revoke the labor certification as provided in \u00a7 655.117 and/or\n\n(ii) Debar the employer from future filings of H-2A temporary labor certification applications as provided in \u00a7 655.118.\n\n(c)  Supplemental information request.  During the course of the audit examination, the CO may request supplemental information and/or documentation from the employer in order to complete the audit.\n\n(d)  Audit violations.  If, as a result of the audit, the CO determines the employer failed to produce required documentation, or determines that the employer violated the standards set forth in \u00a7 655.117(a) with respect to the application, the employer's labor certification may be revoked under \u00a7 655.117 and/or the employer may be referred for debarment under \u00a7 655.118. The CO may determine to provide the audit findings and underlying documentation to DHS or another appropriate enforcement agency. The CO shall refer any findings that an employer discouraged an eligible U.S. worker from applying, or failed to hire, discharged, or otherwise discriminated against an eligible U.S. worker, to the Department of Justice, Civil Rights Division, Office of Special Counsel for Unfair Immigration Related Employment Practices."]], "truncated": false, "filtered_table_rows_count": 298, "expanded_columns": [], "expandable_columns": [], "columns": ["section_id", "title_number", "title_name", "chapter", "subchapter", "part_number", "part_name", "subpart", "subpart_name", "section_number", "section_heading", "agency", "authority", "source_citation", "amendment_citations", "full_text"], "primary_keys": ["section_id"], "units": {}, "query": {"sql": "select section_id, title_number, title_name, chapter, subchapter, part_number, part_name, subpart, subpart_name, section_number, section_heading, agency, authority, source_citation, amendment_citations, full_text from cfr_sections where \"part_number\" = :p0 and \"title_number\" = :p1 order by section_id limit 101", "params": {"p0": "655", "p1": "20"}}, "facet_results": {"title_number": {"name": "title_number", "type": "column", "hideable": false, "toggle_url": "/openregs/cfr_sections.json?part_number=655&title_number=20", "results": [{"value": 20, "label": 20, "count": 298, "toggle_url": "https://www.pawtectors.org/openregs/cfr_sections.json?part_number=655", "selected": true}], "truncated": false}, "agency": {"name": "agency", "type": "column", "hideable": false, "toggle_url": "/openregs/cfr_sections.json?part_number=655&title_number=20", "results": [{"value": "DOL", "label": "DOL", "count": 298, "toggle_url": "https://www.pawtectors.org/openregs/cfr_sections.json?part_number=655&title_number=20&agency=DOL", "selected": false}], "truncated": false}, "part_number": {"name": "part_number", "type": "column", "hideable": false, "toggle_url": "/openregs/cfr_sections.json?part_number=655&title_number=20", "results": [{"value": "655", "label": "655", "count": 298, "toggle_url": "https://www.pawtectors.org/openregs/cfr_sections.json?title_number=20", "selected": true}], "truncated": false}}, "suggested_facets": [{"name": "subpart", "toggle_url": "https://www.pawtectors.org/openregs/cfr_sections.json?part_number=655&title_number=20&_facet=subpart"}, {"name": "subpart_name", "toggle_url": "https://www.pawtectors.org/openregs/cfr_sections.json?part_number=655&title_number=20&_facet=subpart_name"}], "next": "20~3A20~3A3~2E0~2E2~2E1~2E27~2E12~2E41~2E16,20~3A20~3A3~2E0~2E2~2E1~2E27~2E12~2E41~2E16", "next_url": "https://www.pawtectors.org/openregs/cfr_sections.json?part_number=655&title_number=20&_next=20~3A20~3A3~2E0~2E2~2E1~2E27~2E12~2E41~2E16%2C20~3A20~3A3~2E0~2E2~2E1~2E27~2E12~2E41~2E16&_sort=section_id", "private": false, "allow_execute_sql": true, "query_ms": 1004.4241868890822, "source": "Federal Register API & Regulations.gov API", "source_url": "https://www.federalregister.gov/developers/api/v1", "license": "Public Domain (U.S. Government data)", "license_url": "https://www.regulations.gov/faq"}