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[Federal Register: March 31, 2010 (Volume 75, Number 61)]
[Rules and Regulations]               
[Page 16000-16001]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr31mr10-4]                         

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DEPARTMENT OF LABOR

Employment and Training Administration

20 CFR Part 655

 
Temporary Employment of Foreign Workers in the United States

CFR Correction

    In Title 20 of the Code of Federal Regulations, Part 500 to End, 
revised as of April 1, 2009, on page 466, remove Sec.  655.0 and 
correctly reinstate it to read as follows:


Sec.  655.0  Scope and purpose of part.

    (a) Subparts A, B, and C--(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.
    (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).

Once 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.
    (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.

[[Page 16001]]

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.
    (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.
    (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.
    (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.
    (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.

[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]

[FR Doc. 2010-7380 Filed 3-30-10; 8:45 am]
BILLING CODE 1505-01-D
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