68222 Federal Register / Vol. 69, No. 225 / Tuesday, November 23, 2004 / Rules and Regulations 

DEPARTMENT OF LABOR

Employment and Training 

Administration 

20 CFR Part 655 

RIN 1205–AB38 

Labor Condition Applications and 

Requirements for Employers Using 

Nonimmigrants on H–1B Visas in 

Specialty Occupations and as Fashion 

Models; Labor Attestations Regarding 

H–1B1 Visas

AGENCIES: Employment and Training 

Administration and Wage and Hour 

Division, Employment Standards 

Administration, Labor.

ACTION: Interim final rule; request for 

comments. 

SUMMARY: The Department of Labor 

(Department or DOL) is amending its 

regulations related to the temporary 

employment of foreign professionals to 

implement procedural requirements 

applicable to a new visa category—the 

H–1B1 visa. The H–1B1 visa permits the 

temporary entry and employment in the 

United States of professionals in 

specialty occupations from countries 

with which the United States has 

entered into agreements identified in 

section 214(g)(8)(A) of the Immigration 

and Nationality Act (INA). Congress 

created the new visa category as part of 

its approval of the United States-Chile 

Free Trade Agreement and the United 

States-Singapore Free Trade Agreement. 

By statute, the new H–1B1 visa is 

available only to nationals of Chile and 

Singapore. Under the implementing 

legislation, DOL’s responsibilities 

regarding H–1B1 visas are to be 

implemented in a manner similar to the 

existing H–1B program for temporary 

employment of nonimmigrant aliens in 

specialty occupations and as fashion 

models. Thus, employers in the United 

States seeking to temporarily employ 

foreign professionals in specialty 

occupations through H–1B1 visas must 

file a labor attestation with the 

Department of Labor making the same 

attestations regarding payment of 

prevailing wages, working conditions, 

absence of strikes or lockouts, and 

notice to other employees that 

employers currently make when seeking 

entry of a foreign worker under the H–

1B program.

DATES: This interim final rule is 

effective on November 23, 2004. 

Interested persons are invited to submit 

written comments on this interim final 

rule. To ensure consideration, 

comments must be received on or before 

January 24, 2005.

ADDRESSES: You may submit comments, 

identified by Regulatory Information 

Number (RIN) 1205–AB38, by any of the 

following methods: 

• Federal e-Rulemaking Portal:

http://www.regulations.gov. Follow the 

website instructions for submitting 

comments. 

• E-mail: Comments may be 

submitted by e-mail to 

Chil.sing@dol.gov. Include RIN 1205–

AB38 in the subject line of the message. 

• Mail: Submit written comments to 

the Assistant Secretary for Employment 

and Training Administration, U.S. 

Department of Labor, 200 Constitution 

Avenue, NW., Room C–4312, 

Washington, DC 20210, Attention: 

William Carlson, Chief, Division of 

Foreign Labor Certification. Because of 

security measures, mail directed to 

Washington, DC is sometimes delayed. 

We will only consider comments 

postmarked by the U.S. Postal Service or 

other delivery service on or before the 

deadline for comments.

Instructions: All submissions received 

must include the RIN 1205–AB38 for 

this rulemaking. Receipt of submissions, 

whether by mail, Internet, or e-mail will 

not be acknowledged. Because DOL 

continues to experience delays in 

receiving postal mail in the Washington, 

DC area, commenters are encouraged to 

submit any comments by mail early. 

Comments will be available for public 

inspection during normal business 

hours at the address listed above for 

mailed comments. Persons who need 

assistance to review the comments will 

be provided with appropriate aids such 

as readers or print magnifiers. Copies of 

this interim final rule may be obtained 

in alternative formats (e.g., large print, 

Braille, audiotape, or disk) upon 

request. To schedule an appointment to 

review the comments and/or to obtain 

the proposed rule in an alternative 

format, contact the Division of Foreign 

Labor Certification at 202–693–3010 

(this is not a toll-free number).

FOR FURTHER INFORMATION CONTACT: On 

20 CFR part 655, subpart H, regarding 

the H–1B1 labor attestation procedures, 

contact Denis Gruskin, Senior 

Specialist, Division of Foreign Labor 

Certification, Employment and Training 

Administration (ETA), Department of 

Labor, 200 Constitution Avenue, NW., 

Room C–4312, Washington, DC 20210; 

Telephone: (202) 693–2953 (this is not 

a toll-free number). 

On 20 CFR part 655, subpart I, 

regarding the H–1B1 enforcement 

process, contact Michael Ginley, 

Director, Office of Enforcement Policy, 

Wage and Hour Division, Employment 

Standards Administration (ESA), 

Department of Labor, 200 Constitution 

Avenue, NW., Room S–3510, 

Washington, DC 20210; Telephone: 

(202) 693–0745 (this is not a toll-free 

number). 

Individuals with hearing or speech 

impairments may access the telephone 

numbers above via TTY by calling the 

toll-free Federal Information Relay 

Service at 1–800–877–8339.

SUPPLEMENTARY INFORMATION:

I. Statutory Authority and Background 

The United States-Chile Free Trade 

Agreement (Chile FTA) and United 

States-Singapore Free Trade Agreement 

(Singapore FTA) have been 

implemented by the U.S. Congress 

through legislation. See United StatesChile Free Trade Agreement 

Implementation Act, Pub. L. 108–77, 

117 Stat. 909 (September 3, 2003) (Chile 

FTA Implementation Act); United 

States-Singapore Free Trade Agreement 

Implementation Act, Pub. L. 108–78, 

117 Stat. 948 (September 3, 2003) 

(Singapore FTA Implementation Act). 

The Chile FTA and Singapore FTA are 

available on the Web site for the Office 

of the United States Trade 

Representative at http://www.ustr.gov.

The Chile FTA Implementation Act 

amends the Immigration and Nationality 

Act (INA) to create a new visa 

category—the H–1B1 visa—for the 

temporary entry and employment in the 

United States of professionals from 

countries with which the United States 

has entered into agreements identified 

in section 214(g)(8)(A) of the INA. See

INA section 101(a)(15)(H)(i)(b1) [8 

U.S.C. 1101(a)(15)(H)(i)(b1)]. The H–1B1 

visa is available for individuals in 

specialty occupations who seek to come 

to the United States temporarily to 

engage in professional activities for an 

employer. Id. The INA amendments 

creating the H–1B1 visa took effect on 

January 1, 2004. The INA as amended 

identifies two agreements with 

countries that qualify for the H–1B1 

program—the Chile FTA and Singapore 

FTA. See INA section 214(g)(8)(A) [8 

U.S.C. 1184(g)(8)(A)]. 

To qualify as a professional for 

purposes of the H–1B1 program, a 

person must be engaged in a specialty 

occupation requiring theoretical and 

practical application of a body of 

specialized knowledge, and attainment 

of a bachelor’s degree or higher as a 

minimum for entry into the occupation 

in the United States. See INA section 

214(i)(3) [8 U.S.C. 1184(i)(3)]. Both the 

Chile FTA and Singapore FTA state that 

they cover ‘‘a business person seeking to 

engage in a business activity as a 

professional, or to perform training 

functions related to a particular 

Federal Register / Vol. 69, No. 225 / Tuesday, November 23, 2004 / Rules and Regulations 68223

profession, including conducting 

seminars, if the business person 

otherwise complies with immigration 

measures applicable to temporary 

entry.’’ Chile FTA Annex 14.3(D)(1); 

Singapore FTA Annex 11A(IV)(1). Both 

agreements also identify certain 

professions that qualify for temporary 

entry, along with required credentials 

for each. See Chile FTA at Annex 

14.3(D)(2) and Appendix 14.3(D)(2) 

(Disaster Relief Claims Adjuster, 

Management Consultant, Agricultural 

Manager, and Physical Therapist); 

Singapore FTA at Annex 11A(IV)(3) and 

Appendix 11A.2 (Disaster Relief Claims 

Adjuster and Management Consultant). 

The Statement of Administrative Action 

regarding the Chile FTA, which was 

approved by Congress, notes that the 

definition of ‘‘specialty occupation’’

will be interpreted in a manner similar 

to the term’s use in the H–1B visa 

program. See Public Law 108–77, 

§ 101(a) (approving United States-Chile 

Free Trade Agreement Implementation 

Act—Statement of Administrative 

Action, July 15, 2003, available at

http://waysandmeans.house.gov/media/

pdf/chile/hr2738ChileSAA7–15–03.pdf). 

Determinations of specialty occupation 

and of nonimmigrant qualifications are 

not made by the Department of Labor, 

but by the Department of State and/or 

the United States Citizenship and 

Immigration Services (USCIS) of the 

Department of Homeland Security 

(formerly the Immigration and 

Naturalization Service or INS) in 

accordance with the procedures of those 

agencies for processing H–1B or H–1B1 

visa requests. 

An employer in the United States 

wishing to employ a professional from 

one of the countries for which H–1B1 

visas are available (now Chile or 

Singapore) must submit a labor 

attestation to the Department of Labor 

that includes the same elements 

required for employers’ attestations 

under the existing H–1B visa program. 

Compare INA section 212(t)(1) with

212(n)(1) [8 U.S.C. 1182(t)(1) and (n)(1)]. 

As with the H–1B program, the potential 

H–1B1 employer must attest that: 

• It is offering the nonimmigrant, and 

will pay during the period of authorized 

employment, wages that are at least the 

actual wage level paid to other 

employees with similar experience and 

qualifications for the specific 

employment in question, or the 

prevailing wage level for the 

occupational classification in the area of 

intended employment, whichever is 

greater; 

• It will provide working conditions 

for the nonimmigrant that will not 

adversely affect working conditions for 

similarly employed workers; 

• There is no strike or lockout in the 

course of a labor dispute in the 

occupational classification at the 

worksite; and 

• It has provided notice of its filing of 

a labor attestation to its employees’

bargaining representative for the 

occupational classification affected or, if 

there is no bargaining representative, 

has provided notice to its employees in 

the affected occupational classification 

by physical posting or other means. 

Under the INA amendments creating 

the H–1B1 visas, as under the H–1B 

labor condition application 

requirements, the Department must 

review labor attestations only for 

completeness and obvious inaccuracies. 

Unless a filing is incomplete or 

obviously inaccurate, the Secretary of 

Labor must certify the H–1B1 filing 

within 7 days of the filing. See INA 

section 212(t)(2)(C) [8 U.S.C. 

1182(t)(2)(C)]. As with the H–1B 

program, the Department will certify the 

H–1B1 labor attestation for the period of 

employment requested by the employer 

on the ETA Form 9035, up to a 

maximum 3-year period. By statute, 

however, H–1B1 visas will be valid and 

renewable for 1-year periods, with visa 

renewals beyond 3 years requiring the 

filing of a new labor attestation with the 

Department of Labor. See INA section 

214(g)(8)(C) [8 U.S.C. 1184(g)(8)(C)].

Steps for receiving an H–1B1 visa 

subsequent to the Department of Labor 

attestation process are the responsibility 

of and will be identified by USCIS and 

the Department of State. 

As with labor condition applications 

for H–1B nonimmigrants, the Secretary 

of Labor is required to compile a list, by 

employer and occupational 

classification, of all labor attestations 

filed regarding H–1B1 nonimmigrants. 

The list is to identify for each 

attestation: the wage rate, number of 

alien professionals sought, period of 

intended employment, and date of need. 

INA section 212(t)(2)(B) [8 U.S.C. 

1182(t)(2)(B)]. The Department must 

make the list publicly available in 

Washington, DC. 

Enforcement provisions for the 

attestation are also based on 

requirements under the H–1B visa 

program. See INA section 212(t)(3) [8 

U.S.C. 1182(t)(3)]. The Department will 

receive, investigate, and make 

determinations on complaints filed by 

any aggrieved person or organization 

regarding the failure of an employer to 

meet the terms of its attestation. 

Penalties for failure to meet conditions 

of the labor attestation are the same as 

those under the H–1B program. 

The statute establishing the H–1B1 

visa category also provides that an H–

1B1 nonimmigrant may be denied entry 

into the U.S. if a labor dispute is in 

progress in the occupational 

classification at the intended place of 

employment, unless the nonimmigrant 

establishes, pursuant to regulations to 

be issued by the Department of 

Homeland Security, after consultation 

with the Department of Labor, that the 

nonimmigrant’s entry will not adversely 

affect settlement of the labor dispute or 

employment of the workers involved. 

See INA section 214(j)(2) [8 U.S.C. 

1184(j)(2)]. This interim final rule does 

not address this situation, but the 

Department will consult with USCIS on 

development of the USCIS labor dispute 

regulation. 

During the period that the temporary 

entry of professionals provisions of the 

Chile FTA are in effect, prospective 

employers of Chilean nationals seeking 

H–1B1 visas will be subject to the 

attestation requirements of section 

212(t) of the INA, in accordance with 

Chapter 14 and Section D of Annex 14.3 

of the Chile FTA and section 402 of the 

Chile FTA Implementation Act. The 

number of Chilean professionals that 

may enter the United States on H–1B1 

visas under Annex 14.3, Section D is 

limited to 1,400 annually. See Appendix 

14.3(D)(6) of the Chile FTA and INA 

section 214(g)(8)(B). 

For their part, prospective employers 

of Singaporean nationals seeking H–1B1 

visas will be subject to the attestation 

requirements of section 212(t) of the 

INA during the period that the 

temporary entry of professionals 

provisions of the Singapore FTA are in 

effect, in accordance with Chapter 11 

and Section IV of Annex 11A of the 

Singapore FTA and section 402 of the 

Singapore FTA Implementation Act. 

The number of Singaporean 

professionals entering the United States 

under Annex 11A, Section IV is limited 

to 5,400 annually. See Appendix 11A.3 

of the Singapore FTA and INA section 

214(g)(8)(B). 

The Chile and Singapore Free Trade 

Agreements specify that their provisions 

for the temporary entry of professionals 

(that is, the H–1B1 visa program) do not 

limit the ability of such professionals to 

seek entry under other immigration 

measures. Likewise, entry into the 

United States of Chilean or Singaporean 

nationals under the H–1B1 provisions 

neither forecloses nor establishes their 

eligibility for entry under other similar 

provisions of the INA. 

II. Overview of Regulatory Changes 

This interim final rule implements 

responsibilities of the Department of 

68224 Federal Register / Vol. 69, No. 225 / Tuesday, November 23, 2004 / Rules and Regulations 

Labor with respect to the admission and 

related enforcement provisions under 

the new H–1B1 program of 

nonimmigrant professionals in specialty 

occupations from countries with which 

the United States has reached 

agreements identified in section 

214(g)(8)(A) of the INA. This rule 

amends the subpart headings, 

applicability section, and other sections 

of the Department of Labor regulations 

pertaining to employers seeking the 

temporary entry on H–1B visas of 

nonimmigrant aliens in specialty 

occupations and as fashion models (20 

CFR part 655, subparts H and I) to 

extend the same procedures, with 

limited exceptions based upon statutory 

requirements, to temporary entry and 

employment on H–1B1 visas. 

In accordance with the provisions of 

the legislation implementing the Chile 

and Singapore FTAs, this rule 

specifically applies subparts H and I, 

subject to the limited exceptions, to H–

1B1 labor attestations regarding 

nationals of those countries by 

amending 20 CFR 655.0(d), adding a 

new introductory paragraph to 

§ 655.700, adding new paragraphs (c)(3) 

and (d) to § 655.700, and adding a new 

introductory paragraph to § 655.730. 

The specific applicability of subparts H 

and I of part 655 to nonimmigrants from 

Chile and Singapore is identified in new 

§ 655.700(d)(5) (applicability to Chile) 

and § 655.700(d)(6) (applicability to 

Singapore). Other conforming changes 

are made as described below. 

As provided in this rule, employers 

seeking to temporarily employ 

professionals under H–1B1 visas must 

file labor attestations with the 

Department in accordance with the 

regulations at 20 CFR part 655, subpart 

H, and comply with the requirements of 

subpart I, with certain exclusions 

identified in the regulation. Because the 

Department is making the existing H–1B 

regulations generally applicable to H–

1B1 nonimmigrants, rather than writing 

a new rule for the H–1B1 program, this 

interim final rule identifies in 

§ 655.700(c) and (d) the portions of 

subparts H and I that will apply and 

others that will not apply to the H–1B1 

program. Employer’s responsibilities 

under the H–1B1 program are identified 

in new § 655.700(d)(4). New section 20 

CFR 655.700(d)(1) lists the provisions of 

the H–1B regulations that do not apply 

to H–1B1 nonimmigrants, but rather 

apply only to H–1B nonimmigrants. 

Among these exclusions are several 

provisions related to ‘‘H–1B-dependent 

employers’’ and ‘‘willful violators’’ of 

the H–1B rules that Congress did not 

include in the legislation establishing 

the H–1B1 visa, specifically 20 CFR 

655.710(b); 655.730(d)(5) and (e)(3); 

655.736; 655.737; 655.738; 655.739; 

655.760(a)(8), (9) and (10); part of 

655.705(c); and 655.805(a)(7), (8), and 

(9). These provisions also no longer 

apply to H–1B filings, because the 

statutory provisions regarding H–1Bdependent employers and willful 

violators have lapsed for H–1B labor 

condition applications filed after 

September 30, 2003. 

This interim final rule also directs in 

§ 655.700(d)(2) that certain terms in 

subparts H and I of part 655 will be 

interpreted to include terminology 

applicable to the H–1B1 program in 

accordance with the INA amendments, 

except as excluded. Thus, wherever 20 

CFR part 655, subparts H or I, reference 

‘‘H–1B’’ (for example, ‘‘H–1B 

nonimmigrant’’ or ‘‘H–1B visas’’), it 

includes ‘‘H–1B1’’ (e.g., ‘‘H–1B1 

nonimmigrants’’ or ‘‘H–1B1 visas’’), 

except as excluded. Likewise, references 

to a ‘‘labor condition application’’ or 

‘‘LCA’’ shall be understood to include 

reference to a labor attestation under the 

H–1B1 provisions, except as excluded. 

To provide clear statutory citations 

within the regulation, this interim final 

rule amends several sections of part 655, 

subparts H and I, that refer to the INA 

statutory provisions regarding H–1B 

visas (that is, INA section 212(n) and its 

subordinate clauses) to add references to 

the corresponding INA statutory 

provisions regarding H–1B1 visas (that 

is, INA section 212(t) and its 

corresponding subordinate clauses). In 

some instances, no additional reference 

to the H–1B1 statutory provisions is 

necessary because the particular H–1B 

statutory provision ‘‘for example, 

regarding ‘‘H–1B-dependent employers’’

and ‘‘willful violators’’ ‘‘has no parallel 

provision in the H–1B1 statutory section 

(see, e.g., reference to H–1B statutory 

provision in § 655.705(a)). Amendments 

addressing statutory citations are made 

to §§ 655.731, 655.740, 655.800, 

655.801, 655.805, and 655.810. 

Corrections are also made to statutory 

citations in §§ 655.731(c)(10)(i)(C) and 

(c)(10)(ii), and in § 655.801(c). 

Filing procedures for H–1B1 labor 

attestations are identified in 

§ 655.700(d)(3). As provided by that 

section, employers seeking to hire an H–

1B1 nonimmigrant must make the 

required labor attestations by submitting 

a completed ETA Form 9035 or ETA 

Form 9035E (electronic) to the 

Department in accordance with the 

procedures identified in §§ 655.720 and 

655.730. The Department has obtained 

approval for revised ETA Forms 9035 

and 9035E covering both the H–1B and 

H–1B1 programs (OMB control number 

1205–0310, expiration date August 31, 

2007). The new forms allow the 

Department to distinguish between 

Form 9035s filed under the H–1B 

statutory terms and those filed under 

the H–1B1 statutory terms, and between 

labor attestations regarding H–1B1 

nonimmigrants from Chile and H–1B1 

nonimmigrants from Singapore. ETA 

will announce changes in filing 

procedures and instructions by 

publication of notice in the Federal 

Register and posting on the ETA Web 

site at http://atlas.doleta.gov/foreign/.

As required by the new INA 

amendments related to the H–1B1 

program, this interim rule provides in 

20 CFR 655.760(b) that ETA will 

compile and maintain a list of H–1B1 

labor attestations filed under INA 

section 212(t). For each attestation, this 

list will show, by employer, the 

occupational classification, wage rate(s), 

number of nonimmigrants sought, 

period(s) of intended employment, and 

date(s) of need for each employer’s 

application. The list will be available for 

public examination at the Washington, 

DC offices of ETA’s Division of Foreign 

Labor Certification. 

As stated in 20 CFR 655.700(c)(3), this 

interim rule, which implements the 

Department of Labor’s statutory 

responsibilities regarding the H–1B1 

program, will take effect immediately on 

publication in the Federal Register and 

will apply to H–1B1 attestations 

regarding Chilean or Singaporean 

nationals filed on or after that date. H–

1B1 attestations filed on or after January 

1, 2004, but prior to this interim final 

rule’s effective date, will be handled in 

accordance with the statutory terms and 

the processing procedures that the 

Department posted on its Web Site in 

advance of the January 1, 2004, 

commencement of the H–1B1 program. 

III. Administrative Information 

Executive Order 12866—Regulatory 

Planning and Review 

We have determined that this interim 

final rule is not an ‘‘economically 

significant regulatory action’’ within the 

meaning of Executive Order 12866. The 

procedures for filing a labor attestation 

under the new H–1B1 visa category, and 

specifically on behalf of nonimmigrant 

professionals from Chile and Singapore, 

will not have an economic impact of 

$100 million or more because employers 

seeking to employ H–1B1 nonimmigrant 

professionals will use the same 

procedures and forms presently 

required for the H–1B nonimmigrant 

professionals program, and H–1B1 visas 

will be subject to annual numerical 

limits. While it is not economically 

significant, the Office of Management 

Federal Register / Vol. 69, No. 225 / Tuesday, November 23, 2004 / Rules and Regulations 68225

and Budget (OMB) reviewed this 

interim final rule because this is a new 

program and needs to be closely 

coordinated with other Federal 

agencies, in particular the Departments 

of State and of Homeland Security, 

which are also charged with 

responsibilities in implementing the H–

1B1 program. 

Regulatory Flexibility Analysis 

We have notified the Chief Counsel 

for Advocacy, Small Business 

Administration, and made the 

certification pursuant to the Regulatory 

Flexibility Act (RFA) at 5 U.S.C. 605(b), 

that this interim final rule will not have 

a significant economic impact on a 

substantial number of small entities. 

The factual basis for that certification 

is as follows: This rule, which is 

procedural in nature, is required to 

implement statutory provisions enacted 

by Congress pursuant to the Chile FTA 

and Singapore FTA that narrowly 

extend the scope of the Department of 

Labor’s existing H–1B program to 

include similar labor attestation filing 

requirements for the temporary entry of 

Chilean and Singaporean professionals 

under the H–1B1 program. The 

regulatory change will affect only those 

employers seeking nonimmigrant H–

1B1 professionals in specialty 

occupations from Chile or Singapore for 

temporary employment in the United 

States. Employers seeking to employ 

these H–1B1 nonimmigrant 

professionals will use the same 

procedures and forms presently 

required for H–1B nonimmigrant 

professionals, and H–1B1 visas will be 

subject to annual numerical limits. 

Based on past filing data, the DOL 

estimates that in the upcoming year 

employers will file approximately 

260,000 attestations under the H–1B and 

H–1B1 programs. (Since the H–1B 

program’s inception, the number of H–

1B attestations has exceeded the initial 

H–1B visas available each year; for 

example, for Fiscal Year 2003, about 

261,000 attestations covering 517,000 

job openings were certified even though 

only 195,000 initial H–1B visas were 

available that year.) Some employers 

will file multiple attestations in a year. 

Because entry of professionals from 

Chile and Singapore under the H–1B1 

program will be subject to annual 

numerical limits (1,400 from Chile and 

5,400 from Singapore), the Department 

does not anticipate a significant 

expansion in filings. We do not inquire 

about the size of employers filing labor 

attestations; however, the number of 

small entities that file attestations in the 

upcoming year will be less than the 

expected total of 260,000 applications 

and significantly below the potential 

universe of small businesses to which 

the program is open. Further, it should 

be noted that a sizeable number of 

employers file multiple applications. 

Because applications come from 

employers in all industry segments, we 

consider all small businesses as the 

appropriate universe for comparison 

purposes. According to the Small 

Business Administration’s publication 

The Regulatory Flexibility Act—An 

Implementation Guide for Federal 

Agencies, there were 22,900,000 small 

businesses in the United States in 2002. 

Thus in comparison to the universe of 

all small businesses, we estimate the 

number of different (or non-duplicated) 

employers that will be involved in filing 

the expected 260,000 applications 

represents approximately 1% of all 

small businesses. The Department of 

Labor asserts a small business pool of 

1% does not represent a substantial 

proportion of small entities. 

Moreover, the Department of Labor 

does not believe that this rule will have 

a significant economic impact. Under 

the interim final rule, an employer will 

spend the same amount of time 

preparing and submitting the Form ETA 

9035 for the H–1B1 program as the 

employer would for application under 

the H–1B program. Since the attestation 

and filing activities are no different from 

those required under the existing H–1B 

program, the interim rule establishes no 

additional economic burden on small 

entities.

The Department of Labor welcomes 

comments on this RFA certification. 

Unfunded Mandates Reform Act of 1995 

This interim final rule will not result 

in the expenditure by State, local, and 

tribal governments, in the aggregate, or 

by the private sector, of $100 million or 

more in any one year, and it will not 

significantly or uniquely affect small 

governments. Therefore, no actions are 

deemed necessary under the provisions 

of the Unfunded Mandates Reform Act 

of 1995. 

Small Business Regulatory Enforcement 

Fairness Act of 1996 

This interim final rule is not a major 

rule as defined by section 804 of the 

Small Business Regulatory Enforcement 

Act of 1996 (SBREFA). The standards 

for determining whether a rule is a 

major rule as defined by section 804 of 

SBREFA are similar to those used to 

determine whether a rule is an 

‘‘economically significant regulatory 

action’’ within the meaning of Executive 

Order 12866. Because we certified that 

this interim final rule is not an 

economically significant rule under 

Executive Order 12866, we certify that 

it also is not a major rule under 

SBREFA. It will not result in an annual 

effect on the economy of $100 million 

or more; a major increase in costs or 

prices; or significant adverse effects on 

competition, employment, investment, 

productivity, innovation, or on the 

ability of United States-based 

companies to compete with foreignbased companies in domestic and 

export markets. 

Executive Order 13132—Federalism 

This interim final rule will not have 

a substantial direct effect on the States, 

on the relationship between the 

National Government and the States, or 

on the distribution of power and 

responsibilities among the various 

levels of government. Therefore, in 

accordance with Executive Order 13132, 

we have determined that this interim 

final rule does not have sufficient 

federalism implications to warrant the 

preparation of a summary impact 

statement. 

Assessment of Federal Regulations and 

Policies on Families 

This interim final rule does not affect 

family well-being. 

Paperwork Reduction Act 

Forms and information collection 

requirements related to the 

Department’s H–1B and H–1B1 

programs under 20 CFR part 655, 

subpart H, are currently approved under 

OMB control number 1205–0310 

(expiration date August 31, 2007). This 

interim final rule does not include a 

substantive or material modification of 

that collection of information. Under 

this interim final rule, employers filing 

labor attestations regarding H–1B1 

nonimmigrants will use the same forms 

and follow the same procedures as 

employers seeking entry for H–1B 

nonimmigrants. This interim final rule 

simply extends existing H–1B 

paperwork forms and filing procedures 

to potential employers of an additional 

category of potential foreign temporary 

workers—nationals of countries with 

which the United States has entered 

into certain agreements (Chile and 

Singapore) seeking to enter the United 

States under H–1B1 visas to perform 

professional work. Because H–1B1 visas 

will be subject to annual numerical 

limits, the Department does not 

anticipate a substantial increase in 

filings under 20 CFR part 655, subpart 

H. 

Publication as an Interim Final Rule 

The Department has determined that 

the public interest requires the 

68226 Federal Register / Vol. 69, No. 225 / Tuesday, November 23, 2004 / Rules and Regulations 

immediate issuance of this interim final 

rule, and that it is unnecessary to 

publish this technical amendment to the 

H–1B regulations as a Notice of 

Proposed Rulemaking. Pursuant to the 

September 2003 legislation 

implementing the Chile Free Trade 

Agreement, the statutory changes 

extending the H–1B labor attestation 

procedures, with limited changes, to the 

newly created H–1B1 visa category for 

nonimmigrant professionals from 

certain countries became effective 

January 1, 2004. In accordance with the 

Chile FTA and the Singapore FTA and 

their respective implementing 

legislation, application of the new H–

1B1 nonimmigrant procedures, 

including the labor attestation 

requirements, to employers seeking to 

temporarily employ nonimmigrant 

professionals of those countries also 

took effect on January 1, 2004. (While 

this interim rule, which implements the 

Department of Labor’s statutory 

responsibilities regarding the H–1B1 

program, will take effect immediately on 

publication in the Federal Register, any 

H–1B1 applications filed on or after 

January 1, 2004, but prior to this interim 

rule’s effective date, have been handled 

in accordance with the statutory terms 

and the processing procedures that the 

Department posted on its website in 

advance of the January 1, 2004, 

commencement of the H–1B1 program.) 

Insufficient time existed following 

enactment of the statutory 

implementing provisions for the 

Department to issue a proposal for 

comments, review the comments, and 

promulgate a final rule to be effective by 

January 1, 2004. Moreover, the changes 

being made by this interim final rule 

merely extend the H–1B regulations to 

H–1B1 nonimmigrants, subject to 

limited exceptions, in accordance with 

statutory provisions that extend the H–

1B procedural filing requirements to the 

temporary entry of Chilean and 

Singaporean professionals during the 

effective periods of the Chile FTA and 

Singapore FTA. Therefore, the 

Department finds, pursuant to 5 U.S.C. 

553(b)(3)(B), that good cause exists for 

publishing this regulatory amendment 

as an interim final rule. While notice of 

proposed rulemaking is being waived, 

the Department is interested in 

comments and advice regarding this 

interim final rule.

In addition, for these same reasons, it 

has been determined that good cause 

exists for waiving the requirements to 

delay the effective date of these 

technical amendments under 5 U.S.C. 

553(d). It is impracticable and 

unnecessary to provide for a delayed 

effective date because the statutory 

amendments creating the H–1B1 

nonimmigrant category, extending the 

procedural filing requirements under 

the H–1B program to H–1B1 

nonimmigrants, and applying these 

provisions to nationals of Chile and 

Singapore became effective January 1, 

2004. 

Catalog of Federal Domestic Assistance 

Number 

This program is listed in the Catalog 

of Federal Domestic Assistance at 

Number 17.252, ‘‘Attestations by 

Employers Using Non-Immigrant Aliens 

in Specialty Occupations.’’

List of Subjects in 20 CFR Part 655 

Administrative practice and 

procedure, Agriculture, Aliens, Chile, 

Employment, Forest and forest 

products, Health professions, 

Immigration, Labor, Longshore work, 

Migrant labor, Penalties, Reporting and 

recordkeeping requirements, Singapore, 

Students, Wages.

■ For the reasons stated in the Preamble, 

20 CFR part 655 is amended as follows:

PART 655—TEMPORARY 

EMPLOYMENT OF ALIENS IN THE 

UNITED STATES

■ 1. The authority citation for part 655 is 

revised to read as follows:

Authority: Section 655.0 issued under 8 

U.S.C. 1101(a)(15)(H)(i) and (ii), 1182(m), (n), 

and (t), 1184, 1188, and 1288(c) and (d); 29 

U.S.C. 49 et seq.; sec. 3(c)(1), Pub. L. 101–

238, 103 Stat. 2099, 2102 (8 U.S.C. 1182 

note); sec. 221(a), Pub. L. 101–649, 104 Stat. 

4978, 5027 (8 U.S.C. 1184 note); sec. 323, 

Pub. L. 103–206, 107 Stat. 2149; Title IV, 

Pub. L. 105–277, 112 Stat. 2681; Pub. L. 106–

95, 113 Stat. 1312 (8 U.S.C. 1182 note); and 

8 CFR 213.2(h)(4)(i).

Section 655.00 issued under 8 U.S.C. 

1101(a)(15)(H)(ii), 1184, and 1188; 29 U.S.C. 

49 et seq.; and 8 CFR 214.2(h)(4)(i). 

Subparts A and C issued under 8 U.S.C. 

1101(a)(15)(H)(ii)(b) and 1184; 29 U.S.C. 49 et 

seq.; and 8 CFR 214.2(h)(4)(i). 

Subpart B issued under 8 U.S.C. 

1101(a)(15)(H)(ii)(a), 1184, and 1188; and 29 

U.S.C. 49 et seq.

Subparts D and E issued under 8 U.S.C. 

1101(a)(15)(H)(i)(a), 1182(m), and 1184; 29 

U.S.C. 49 et seq.; and sec. 3(c)(1), Pub. L. 

101–238, 103 Stat. 2099, 2103 (8 U.S.C. 1182 

note). 

Subparts F and G issued under 8 U.S.C. 

1184 and 1288(c); and 29 U.S.C. 49 et seq.

Subparts H and I issued under 8 U.S.C. 

1101(a)(15)(H)(i)(b) and (b1), 1182(n), 1182(t), 

and 1184; 29 U.S.C. 49 et seq.; sec 303(a)(8), 

Pub. L. 102–232, 105 Stat. 1733, 1748 (8 

U.S.C. 1182 note); and Title IV, Pub. L. 105–

277, 112 Stat. 2681. 

Subparts J and K issued under 29 U.S.C. 49 

et seq.; and sec. 221(a), Pub. L. 101–649, 104 

Stat. 4978, 5027 (8 U.S.C. 1184 note). 

Subparts L and M issued under 8 U.S.C. 

1101(a)(15)(H)(i)(c), 1182(m), and 1184; and 

29 U.S.C. 49 et seq.

■ 2. Section 655.0 is amended by 

revising paragraph (d) to read as follows:

§ 655.0 Scope and purpose of part.

* * * * *

(d) Subparts H and I of this part.

Subparts H and I of this part set forth 

the process by which employers can file 

with, and the requirements for obtaining 

approval from, the Department of Labor 

of labor condition applications 

necessary for the purpose of petitioning 

the United States Citizenship and 

Immigration Services (USCIS) of the 

Department of Homeland Security 

(formerly the Immigration and 

Naturalization Service or INS) for H–1B 

visas for aliens to be employed in 

specialty occupations or as fashion 

models of distinguished merit and 

ability, and the enforcement provisions 

relating thereto. With respect to H–1B1 

visas for the temporary employment in 

specialty occupations of nonimmigrant 

professionals from countries with which 

the U.S. has entered into certain 

agreements identified in section 

214(g)(8)(A) of the INA, subparts H and 

I set forth the process for an employer 

to file a labor attestation with the 

Department of Labor, the Department’s 

approval procedures regarding these 

attestations, and enforcement positions 

related thereto.

* * * * *

■ 3. Part 655, subpart H, is amended by 

revising the subpart heading to read as 

follows:

Subpart H—Labor Condition 

Applications and Requirements for 

Employers Using Nonimmigrants on 

H–1B Visas in Specialty Occupations 

and as Fashion Models, and Labor 

Attestation Requirements for 

Employers Using Nonimmigrants on 

H–1B1 Visas in Specialty Occupations

■ 4. Section 655.700 is amended by 

revising the section title and paragraph 

(a) introductory text, by adding a new 

introductory paragraph to be placed 

prior to paragraph (a), and by adding new 

paragraphs (c)(3) and (d) as follows:

§ 655.700 What statutory provisions 

govern the employment of H–1B and H–1B1 

nonimmigrants and how do employers 

apply for an H–1B or H–1B1 visa? 

Under the H–1B1 visa, the 

Immigration and Nationality Act (INA), 

as amended, permits nonimmigrant 

professionals in specialty occupations 

from countries with which the U.S. has 

entered into certain agreements that are 

identified in section 214(g)(8)(A) of the 

Federal Register / Vol. 69, No. 225 / Tuesday, November 23, 2004 / Rules and Regulations 68227

INA to temporarily enter the U.S. for 

professional employment. Employers 

seeking to temporarily employ H–1B1 

professionals must file a labor 

attestation with the Department of Labor 

in accordance with this subpart as set 

out in § 655.700(c)(3) and (d), which 

identify the sections of this subpart H 

and of subpart I of this part that apply 

to the H–1B1 program, sections and 

subsections applicable only to the H–1B 

program, and how terminology is to be 

applied. Steps for receiving an H–1B1 

visa and entering the U.S. on an H–1B1 

visa after the attestation process is 

completed with the Department of 

Labor, which differ in some respects 

from the steps for H–1B visas, are the 

responsibility of the Department of State 

and the United States Citizenship and 

Immigration Services (USCIS) of the 

Department of Homeland Security 

(formerly the Immigration and 

Naturalization Service or INS) and are 

identified in regulations and procedures 

of those agencies. Consult the 

Department of State (http://

www.state.gov/) and USCIS (http://

uscis.gov/) websites and regulations for 

specific instructions regarding H–1B1 

visas. Procedures described in this 

subpart H for obtaining a visa and 

entering the U.S. after the Department of 

Labor attestation process, including 

procedures in this section and 

§ 655.705, apply only to H–1B 

nonimmigrants, not to H–1B1 

nonimmigrants. 

(a) Statutory provisions regarding H–

1B visas. With respect to nonimmigrant 

workers entering the U.S. on H–1B 

visas, which are available to 

nonimmigrant aliens in specialty 

occupations or certain fashion models 

from any country, the INA, as amended, 

provides as follows: * * *

* * * * *

(c) * * * 

(3) Subject to paragraph (d) of this 

section, this subpart H and subpart I of 

this part apply to all employers seeking 

to employ foreign workers under the H–

1B1 visa classification in specialty 

occupations in accordance with INA 

section 101(a)(15)(H)(i)(b1) (8 U.S.C. 

1101(a)(15)(H)(i)(b1)), under an 

agreement listed in INA section 

214(g)(8)(A) (8 U.S.C. 1184(g)(8)(A)), 

and during the period that the listed 

agreement is in effect. This paragraph is 

applicable to H–1B1 attestations filed on 

or after November 23, 2004; H–1B1 

attestations filed prior to that date but 

on or after January 1, 2004, the 

commencement of the H–1B1 program, 

will be handled in accordance with the 

H–1B1 statutory terms and the H–1B1 

processing procedures the Department 

posted on its website in advance of 

January 1, 2004. 

(d) Nonimmigrants on H–1B1 visas.

(1) Exclusions. The following sections 

and portions of sections in this subpart 

and in subpart I of this part do not apply 

to H–1B1 nonimmigrants but apply only 

to H–1B nonimmigrants: Sections 

655.700(a), (b), (c)(1) and (c)(2); 

655.705(b) and (c); 655.710(b); the last 

clause of the second sentence of 

655.720(c) (regarding a petition to INS); 

655.730(d)(5) and (e)(3); 655.736; 

655.737; 655.738; 655.739; 

655.760(a)(8), (9) and (10); and 

655.805(a)(7), (8) and (9). Additionally, 

the definition of the Immigration and 

Naturalization Service in § 655.715 is 

inapplicable to the H–1B1 program. 

Further, any of the following references 

in this subpart H or in subpart I of this 

part, whether in the excluded sections 

listed above or elsewhere, do not apply 

to H–1B1 nonimmigrants but apply only 

to H–1B nonimmigrants: References to 

fashion models of distinguished merit 

and ability (H–1B but not H–1B1 visas 

are available to such fashion models); 

references to a petition process before 

the INS (now USCIS) (the petition 

process applies only to H–1B not H–1B1 

visas); references to H–1B-dependent 

employers and employers found to have 

willfully violated the H–1B program 

requirements (these provisions do not 

apply to the H–1B1 program); and 

reference in § 655.750(a) or elsewhere in 

this part to the provision in INA section 

214(n) (formerly INA section 214(m)) 

regarding increased portability of H–1B 

status (by the statutory terms, the 

portability provision is inapplicable to 

H–1B1 nonimmigrants).

(2) Terminology. For purposes of this 

subpart H and subpart I of this part, 

except in those sections identified in 

paragraph (d)(1) of this section as 

inapplicable to H–1B1 nonimmigrants 

and as otherwise excluded: 

(i) The term ‘‘H–1B’’ shall include 

‘‘H–1B1’’ (INA section 

101(a)(15)(H)(i)(b1)); and 

(ii) The term ‘‘labor condition 

application’’ or ‘‘LCA’’ shall include a 

labor attestation pursuant to the 

provisions of INA section 212(t)(1) with 

respect to an H–1B1 nonimmigrant 

professional under INA section 

101(a)(15)(H)(i)(b1). 

(3) Filing procedures for H–1B1 labor 

attestations. Employers seeking to 

employ an H–1B1 nonimmigrant must 

submit to DOL a completed ETA Form 

9035 or ETA Form 9035E (electronic) in 

the manner prescribed in §§ 655.720 

and 655.730. Employers must indicate 

on the form whether the labor 

attestation is for an ‘‘H–1B1 Chile’’ or 

‘‘H–1B1 Singapore’’ nonimmigrant. 

Changes in the procedures and 

instructions for submission of the H–

1B1 labor attestation will be provided in 

a notice published in the Federal 

Register and posted at the ETA web site 

at http://atlas.doleta.gov/foreign/.

(4) Employer’s responsibilities 

regarding H–1B1 labor attestation. Each 

employer seeking an H–1B1 

nonimmigrant in a specialty occupation 

has several responsibilities, as described 

more fully in this subpart and subpart 

I of this part, including: 

(i) By completing and submitting the 

LCA, and in addition by signing the 

LCA, the employer makes certain 

representations and agrees to several 

attestations regarding the employer’s 

responsibilities, including the wages, 

working conditions, and benefits to be 

provided to the H–1B1 nonimmigrant (8 

U.S.C. 1182(t)(1)). These attestations are 

specifically identified and incorporated 

in the LCA, as well as being set forth in 

full on Form ETA 9035CP. 

(ii) The employer reaffirms its 

acceptance of all of the attestation 

obligations by transmitting the certified 

labor attestation to the nonimmigrant, 

the Department of State, and/or the 

USCIS in accordance with the further 

procedures of those agencies necessary 

for the nonimmigrant to obtain an H–

1B1 visa and enter or remain in the U.S. 

(iii) The employer shall maintain the 

original signed and certified LCA in its 

files, and shall make a copy of the filed 

LCA, as well as necessary supporting 

documentation (as identified under this 

subpart), available for public 

examination in a public access file at 

the employer’s principal place of 

business in the U.S. or at the place of 

employment within one working day 

after the date on which the LCA is filed 

with ETA. 

(iv) The employer shall develop 

sufficient documentation to meet its 

burden of proof, in the event that such 

statement or information is challenged, 

with respect to the validity of the 

statements made in its LCA and the 

accuracy of information provided. The 

employer shall also maintain such 

documentation at its principal place of 

business in the U.S. and shall make 

such documentation available to DOL 

for inspection and copying upon 

request. 

(5) Application to Chile. During the 

period that the provisions of Chapter 14 

and Section D of Annex 14.3 of the 

United States-Chile Free Trade 

Agreement (Chile FTA) are in effect, this 

subpart H and subpart I of this part shall 

apply (except for the provisions 

excluded under paragraph (d)(1) of this 

section) to the temporary entry and 

employment of a nonimmigrant who is 

68228 Federal Register / Vol. 69, No. 225 / Tuesday, November 23, 2004 / Rules and Regulations 

a national of Chile under the provisions 

of Article 14.9 and Annex 2.1 of the 

Chile FTA and who is a professional 

under the provisions of Annex 14.3(D) 

of the Chile FTA. 

(6) Application to Singapore. During 

the period that the provisions of Section 

IV of Annex 11A of the United StatesSingapore Free Trade Agreement 

(Singapore FTA) are in effect, this 

subpart H and subpart I of this part shall 

apply (except for the provisions 

excluded under paragraph (d)(1) of this 

section) to the temporary entry and 

employment of a nonimmigrant who is 

a national of Singapore under the 

provisions of Chapter 11 and Section IV 

of Annex 11A of the Singapore FTA and 

who is a professional under the 

provisions of Annex 11A(IV) of the 

Singapore FTA.

5. Section 655.715 is amended by 

revising the definitions of ‘‘employer’’

and ‘‘specialty occupation’’ to read as 

follows:

§ 655.715 Definitions.

* * * * *

Employer means a person, firm, 

corporation, contractor, or other 

association or organization in the 

United States that has an employment 

relationship with H–1B or H–1B1 

nonimmigrants and/or U.S. worker(s). In 

the case of an H–1B nonimmigrant (not 

including an H–1B1 nonimmigrant), the 

person, firm, contractor, or other 

association or organization in the 

United States that files a petition with 

the United States Citizenship and 

Immigration Services (USCIS) of the 

Department of Homeland Security 

(formerly the Immigration and 

Naturalization Service or INS), on behalf 

of the nonimmigrant is deemed to be the 

employer of that nonimmigrant. In the 

case of an H–1B1 nonimmigrant, the 

person, firm, contractor, or other 

association or organization in the 

United States that files an LCA with the 

Department of Labor on behalf of the 

nonimmigrant is deemed to be the 

employer of that nonimmigrant.

* * * * *

Specialty occupation:

(1) For purposes of the H–1B (not 

including H–1B1) program, specialty 

occupation means an occupation that 

requires theoretical and practical 

application of a body of highly 

specialized knowledge, and attainment 

of a bachelor’s or higher degree (or its 

equivalent) in the specific specialty as a 

minimum for entry into the occupation 

in the United States. The nonimmigrant 

in a specialty occupation shall possess 

the following qualifications: 

(i) Full state licensure to practice in 

the occupation, if licensure is required 

for the occupation; 

(ii) Completion of the required degree; 

or 

(iii) Experience in the specialty 

equivalent to the completion of such 

degree and recognition of expertise in 

the specialty through progressively 

responsible positions relating to the 

specialty. INA, 8 U.S.C. 1184(i)(1) and 

(2). 

(2) For purposes of the H–1B1 

program, specialty occupation means an 

occupation that requires theoretical and 

practical application of a body of 

specialized knowledge, and attainment 

of a bachelor’s or higher degree (or its 

equivalent) in the specific specialty as a 

minimum for entry into the occupation 

in the United States. INA, 8 U.S.C. 

1184(i)(3). For H–1B1 nonimmigrants 

from Chile, additional occupations that 

qualify as specialty occupations are 

Disaster Relief Claims Adjuster, 

Management Consultant, Agricultural 

Manager, and Physical Therapist, as 

defined in Appendix 14.3(D)(2) of the 

United States-Chile Free Trade 

Agreement. For H–1B1 nonimmigrants 

from Singapore, additional occupations 

that qualify as specialty occupations are 

Disaster Relief Claims Adjuster and 

Management Consultant, as defined in 

Appendix 11A.2 of the United StatesSingapore Free Trade Agreement. 

(3) Determinations of specialty 

occupation and of nonimmigrant 

qualifications for the H–1B and H–1B1 

programs are not made by the 

Department of Labor, but by the 

Department of State and/or United 

States Citizenship and Immigration 

Services (USCIS) of the Department of 

Homeland Security (formerly the 

Immigration and Naturalization Service 

or INS) in accordance with the 

procedures of those agencies for 

processing visas, petitions, extensions of 

stay, or requests for change of 

nonimmigrant status for H–1B or H–1B1 

nonimmigrants.

* * * * *

■ 6. Section 655.730 is amended by 

adding a new introductory paragraph to 

be placed prior to paragraph (a) to read 

as follows:

§ 655.730 What is the process for filing a 

labor condition application? 

This section applies to the filing of 

labor condition applications for both H–

1B nonimmigrants and H–1B1 

nonimmigrants.

* * * * *

§ 655.731 [Amended]

■ 7. Section 655.731 is amended:

■ (a) In paragraph (c)(10)(i)(C) by 

removing the phrase ‘‘filing fee under 

section 214(c)(1) of the INA’’ and adding 

in lieu thereof the phrase ‘‘filing fee, if 

any, under section 214(c) of the INA’’

and

■ (b) In paragraph (c)(10)(ii) by removing 

the phrase ‘‘filing fee paid by the 

employer under Section 214(c)(1) of the 

INA’’ and adding in lieu thereof the 

phrase ‘‘filing fee paid by the employer, 

if any, under section 214(c) of the INA.’’

§ 655.740 [Amended]

■ 8. Section 655.740 is amended in 

paragraph (a)(2)(ii) by removing the 

phrase ‘‘disqualified from employing H–

1B nonimmigrants under section 

212(n)(2) of the INA.’’ and adding in lieu 

thereof the phrase ‘‘disqualified from 

employing H–1B nonimmigrants under 

section 212(n)(2) of the INA or from 

employing H–1B1 nonimmigrants under 

212(t)(3) of the INA.’’

■ 9. Section 655.760 is amended by 

revising paragraph (b) to read as follows:

§ 655.760 What records are to be made 

available to the public, and what records 

are to be retained?

* * * * *

(b) National lists of applications and 

attestations. ETA shall compile and 

maintain on a current basis a list of the 

labor condition applications filed under 

INA section 212(n) regarding H–1B 

nonimmigrants and a list of labor 

attestations filed under INA section 

212(t) regarding H–1B1 nonimmigrants. 

Each list shall be by employer, showing 

the occupational classification, wage 

rate(s), number of nonimmigrants 

sought, period(s) of intended 

employment, and date(s) of need for 

each employer’s application. The list 

shall be available for public 

examination at the Division of Foreign 

Labor Certification, Department of 

Labor, 200 Constitution Avenue, NW., 

Room C–4312, Washington, DC 20210.

* * * * *

■ 10. Part 655, subpart I is amended by 

revising the subpart heading to read as 

follows:

Subpart I—Enforcement of H–1B Labor 

Condition Applications and H–1B1 

Labor Attestations

§ 655.800 [Amended]

■ 11. Section 655.800 is amended:

(a) In paragraph (a) by removing the 

phrase ‘‘section 212(n) of the INA (8 

U.S.C. 1182(n))’’ and adding in lieu 

thereof the phrase ‘‘sections 212(n) and 

(t) of the INA (8 U.S.C. 1182(n) and (t))’’;

■ (b) In paragraph (c) by removing the 

phrase ‘‘section 212(n) of the INA’’ and 

Federal Register / Vol. 69, No. 225 / Tuesday, November 23, 2004 / Rules and Regulations 68229

adding in lieu thereof the phrase 

‘‘sections 212(n) or (t) of the INA’’; and

■ (c) In paragraph (c) by removing the 

phrase ‘‘pursuant to 8 U.S.C. 1182(n)’’

and adding in lieu thereof the phrase 

‘‘pursuant to 8 U.S.C. 1182(n) or (t).’’

§ 655.801 [Amended]

■ 12. Section 655.801 is amended:

■ (a) In paragraphs (a)(1) and (2) by 

removing the phrase ‘‘section 212(n)’’

wherever it appears and adding in lieu 

thereof the phrase ‘‘sections 212(n) or 

(t)’’;

■ (b) In paragraph (b) by removing the 

phrase ‘‘section 212(n)(2)(C)(ii)’’ and 

adding in lieu thereof the phrase 

‘‘sections 212(n)(2)(C)(ii) or (t)(3)(C)(ii)’’;

■ (c) In the first sentence of paragraph (c) 

by: removing the phrase ‘‘section 

212(n)(2)(v) of the INA’’ and adding in 

lieu thereof the phrase ‘‘sections 

212(n)(2)(C)(v) and (t)(3)(C)(v) of the 

INA’’; and removing the phrase 

‘‘paragraph (d)(1) of this section (or 

§ 655.501(a)) may be allowed’’ and 

adding in lieu thereof the phrase 

‘‘paragraph (a)(1) of this section may be 

allowed’’; and

■ (d) In the second sentence of paragraph 

(c) by removing the phrase ‘‘section 

212(n) of the INA’’ and adding in lieu 

thereof the phrase ‘‘sections 212(n) or (t) 

of the INA, as applicable.’’

§ 655.805 [Amended]

■ 13. Section 655.805 is amended in 

paragraph (c) by removing the phrase 

‘‘section 212(n)(1)(A)(i) or (ii) of the 

INA’’ and adding in lieu thereof the 

phrase ‘‘sections 212(n)(1)(A)(i) or (ii), or 

212(t)(1)(A)(i) or (ii) of the INA.’’

§ 655.810 [Amended]

■ 14. Section 655.810 is amended:

■ (a) In paragraph (b)(1)(vi) by removing 

the phrase ‘‘section 212(n)’’ wherever it 

appears and adding in lieu thereof the 

phrase ‘‘sections 212(n) or (t)’’; and

■ (b) In paragraph (c)(4) by removing the 

phrase ‘‘8 U.S.C. 1182(n)’’ and adding in 

lieu thereof the phrase ‘‘8 U.S.C. 1182(n) 

or (t).’’

Signed in Washington, DC, this 16th day of 

November 2004. 

Emily Stover DeRocco, 

Assistant Secretary, Employment and 

Training Administration. 

Alfred B. Robinson, Jr., 

Acting Administrator, Wage and Hour 

Division, Employment Standards 

Administration.

[FR Doc. 04–25783 Filed 11–22–04; 8:45 am] 

BILLING CODE 4510–30–P