1650 Federal Register / Vol. 72, No. 8 / Friday, January 12, 2007 / Proposed Rules 

DEPARTMENT OF LABOR 

Employment and Training 

Administration 

20 CFR Part 655 

RIN 1205–AB43 

Labor Condition Application 

Requirements for Employers Seeking 

To Use Nonimmigrants on E–3 Visas in 

Specialty Occupations; Filing 

Procedures 

AGENCY: Employment and Training 

Administration and Wage and Hour 

Division, Employment Standards 

Administration, Department of Labor. 

ACTION: Notice of proposed rulemaking; 

request for comments. 

SUMMARY: The Department of Labor (the 

Department or DOL) is proposing to 

amend its regulations regarding the 

temporary employment of 

nonimmigrant foreign professionals to 

implement procedural requirements 

applicable to the new E–3 visa category. 

This new visa classification was 

established by title V of the REAL ID 

Act of 2005 (Division B) in the 

Emergency Supplemental 

Appropriations Act for Defense, the 

Global War on Terror, and Tsunami 

Relief, 2005, and applies to certain 

Australian nationals coming to the 

United States solely to perform services 

in specialty occupations. This Notice of 

Proposed Rulemaking (NPRM or 

proposed rule) clarifies the procedures 

that employers must follow in obtaining 

a DOL-certified labor condition 

application before seeking an E–3 visa 

for a foreign worker. 

DATES: Interested persons are invited to 

submit written comments on this 

proposed rule on or before February 12, 

2007. 

ADDRESSES: You may submit comments, 

identified by RIN number 1205–AB43, 

by any of the following methods: 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the 

instructions for submitting comments. 

• E-mail: E3.comments@dol.gov. 

Include RIN number 1205–AB43 in the 

subject line of the message. 

• Mail: U.S. Department of Labor, 

Employment and Training 

Administration, 200 Constitution 

Avenue, NW., Room N–5641, 

Washington, DC 20210. 

• Hand Delivery/Courier: 200 

Constitution Avenue, NW., Room 

N–5641. 

Please note that due to security 

concerns, postal mail delivery in 

Washington, DC may be delayed. 

Therefore, the Department encourages 

the public to submit comments via 

e-mail or Internet as indicated above. 

Please also note that all comments 

received will be posted on the 

www.regulations.gov Web site. The 

www.regulations.gov Web site is the 

federal eRulemaking portal and all 

comments received will be available 

and accessible to the public. Therefore, 

the Department recommends that 

commenters safeguard their personal 

information such as social security 

numbers, personal addresses, telephone 

numbers, and e-mail addresses included 

in their comments as such may become 

easily available to the public via the 

www.regulations.gov Web site. If a 

comment is e-mailed directly to the 

Department’s address without going 

through www.regulations.gov, the 

comment will have the sender’s e-mail 

address attached to it and therefore, the 

email address and information 

contained therein may be posted online. 

It is the responsibility of the commenter 

to safeguard their information. 

Instructions: All submissions must 

include the agency name and Regulatory 

Information Number (RIN 1205–AB43) 

for this rulemaking and must be 

received on or before the last day of the 

comment period. The Department will 

not open, read, or consider any 

comments received after that date. Also, 

the Department will not acknowledge 

receipt of any comments received. 

All comments received will be posted 

on www.regulations.gov and may be 

posted without information redacted. 

The www.regulations.gov Web Site is a 

federal eRulemaking portal which is 

accessible to the public. Therefore, the 

Department is informing the public that 

personal information included in 

comments such as social security 

numbers, and personal addresses, phone 

numbers, and email address may be 

easily available to the public online. 

Also, if commenter’s e-mail a comment 

directly to the Department’s address 

without going through 

www.regulations.gov, the comment will 

have the sender’s e-mail address 

attached to it and it may be posted. 

Docket: All comments will be 

available for public inspection without 

change, including any personal 

information provided, between 8:30 

a.m. and 5 p.m., at the Department of 

Labor, Employment and Training 

Administration, Office of Foreign Labor 

Certification, 200 Constitution Avenue, 

NW., Room C–4312, Washington, DC 

20210. Copies of the rule are available 

in alternative formats of large print and 

electronic file on computer disk, which 

may be obtained at the above-stated 

address. The rule is available on the 

Internet at the Web address http:// 

www.doleta.gov. 

FOR FURTHER INFORMATION CONTACT: 

William L. Carlson, Administrator, 

Office of Foreign Labor Certification, 

Employment and Training 

Administration, U.S. Department of 

Labor, 200 Constitution Avenue, NW., 

Room C–4312, Washington, DC 20210; 

Telephone: (202) 693–3010 (this is not 

a toll-free number). 

For information regarding the E–3 

enforcement process in 20 CFR part 655, 

subpart I, contact Diane Koplewski, 

Immigration Team Leader, Office of 

Enforcement Policy, Wage and Hour 

Division, Employment Standards 

Administration (ESA), U.S. Department 

of Labor, 200 Constitution Avenue, 

NW., Room S–3516, Washington, DC 

20210; Telephone: (202) 693–0071 (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 (800) 877–8339 (this is a tollfree number). 

SUPPLEMENTARY INFORMATION: 

I. Background 

On May 11, 2005, title V of the REAL 

ID Act of 2005 (Division B) in the 

Emergency Supplemental 

Appropriations Act for Defense, the 

Global War on Terror, and Tsunami 

Relief, 2005 (Pub. L. 109–13, § 501, 119 

Stat. 231, 278 (2005)), amended section 

101(a)(15)(E) of the Immigration and 

Nationality Act (Act or INA) (8 U.S.C. 

1184 et seq.) to add a new 

nonimmigrant classification for aliens 

who enter the United States under a 

treaty with a foreign country of which 

the alien is a national. 8 U.S.C. 

1101(a)(15)(E). Section 501 of title V of 

the REAL ID Act established reciprocal 

visas, known as the E–3 visa category, 

for Australian nationals who enter 

solely to perform services in specialty 

occupations in the United States. The 

definition of a specialty occupation for 

the E–3 visa program is the same as it 

is for the H–1B visa program. 8 U.S.C. 

1184(i)(1); 20 CFR 655.715. 

The E–3 visa classification applies 

only to nationals of the Commonwealth 

of Australia and is limited to 10,500 

initial visas annually. 8 U.S.C. 

1184(g)(11)(A)–1184(g)(11)(B). Spouses 

and children do not count against the 

numerical limitation nor are they 

required to possess the nationality of the 

principal. 8 U.S.C. 1184(g)(11)(C). The 

sponsoring employer must present a 

labor condition application (LCA) 

attesting to the wages and working 

conditions certified by the Department 


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of Labor (Department or DOL) to the 

Department of State (DOS) Consular 

Officer at the time of visa application. 

8 U.S.C. 1101(a)(15)(E)(iii), 1182(t)(1); 

see also 22 CFR 41.51. 

An employer seeking to employ aliens 

on an E–3 visa to work in a specialty 

occupation in the United States must 

file a labor attestation under section 

212(t) of the Immigration and 

Nationality Act, 8 U.S.C. 1182(t), with 

the Employment and Training 

Administration (ETA) of DOL. This 

requirement is the same requirement 

applicable to employers seeking to 

employ Chilean or Singaporean 

nationals on nonimmigrant H–1B1 

worker visas as professionals in 

specialty occupations under 8 U.S.C. 

1182(t). The labor attestation 

requirements in INA section 212(t) for 

H–1B1, and now E–3, parallel the labor 

condition application requirements in 

section 212(n) of the INA, 8 U.S.C. 

1182(n), for nonimmigrant H–1B visas 

that permit employers to hire foreign 

professionals in specialty occupations. 

Since most of the requirements in 

section 212(n) and section 212(t) are 

similar, the Department extended its H–

1B regulations—with certain exceptions 

as required by the H–1B1 statute—to the 

H–1B1 program through an Interim 

Final Rule published on November 23, 

2004, at 69 FR 68222. The H–1B1 

Interim Final Rule was adopted with 

one change in a Final Rule published in 

the Federal Register on June 30, 2006 at 

71 FR 37802. In this NPRM, the 

Department seeks to extend the H–1B 

regulations to the E–3 program. 

II. Statutory Requirements 

An employer who wishes to employ 

a professional who is a national of the 

Commonwealth of Australia in the 

United States under the E–3 visa 

program must submit a labor condition 

application to DOL that includes 

elements required of an employer under 

the existing H–1B and H–1B1 visa 

programs. INA section 212(t)(1), 

212(n)(1); 8 U.S.C. 1182(t)(1), 

1182(n)(1). As required under the H–1B 

and H–1B1 programs, the E–3 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. 

As required in the H–1B and H–1B1 

programs, the Department may review 

E–3 labor attestations only for 

completeness and obvious inaccuracies. 

Unless a filing is incomplete or 

obviously inaccurate, the Secretary of 

Labor must certify the E–3 filing within 

seven days of filing. INA section 

212(t)(2)(C); 8 U.S.C. 1182(t)(2)(C). The 

maximum period for which an E–3 labor 

attestation will be certified is two years 

from the employment start date as 

indicated on the LCA. This certification 

period is consistent with the 

Department of Homeland Security’s 

(DHS) regulation for admission of treaty 

traders and investors for a maximum 

period of two years and Department of 

State’s practice. See 8 CFR 

§ 214.2(e)(19)–(20); see also U.S. Dep’t 

of State, 2005 Foreign Affairs Manual 9 

(Issued at 9 FAM 41.51, N16.9, 

‘‘Validity of Issued Visa’’). An employer 

must file a new E–3 labor condition 

application to renew an attestation 

beyond the initial two-year period. 

After the DOL attestation process is 

completed, DHS’ United States 

Citizenship and Immigration Services 

and DOS are responsible for processing 

the individual E–3 visa requests. DOS 

issued a Final Rule for the E–3 program 

at 22 CFR 41.51(c) on September 2, 

2005. 70 FR 52292. Under that process, 

a petition to DHS is not necessary for 

initial E–3 visa requests. Instead, a 

foreign worker who is seeking an E–3 

visa and is not currently in the United 

States must present the necessary 

evidence for classification directly to 

the Consular Officer at the time of visa 

application. 22 CFR 41.51(c). 

As with labor condition applications 

for H–1B and H–1B1 nonimmigrants, 

the Secretary of Labor must compile a 

list by employer and occupational 

classification of all labor attestations 

filed regarding E–3 nonimmigrants. The 

list identifies the wage rate, number of 

alien professionals sought, period of 

intended employment, and date of need 

for each attestation. INA section 

212(t)(2)(B); 8 U.S.C. 1182(t)(2)(B). The 

Department must make the list available 

for public inspection in Washington, 

DC. 

Enforcement provisions for E–3 labor 

condition applications are based on the 

requirements of the H–1B1 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 attestations. DOL 

is also authorized to conduct random 

investigations for a period of up to five 

years of any employer found by DOL to 

have committed a willful failure to meet 

a required attestation or to have made a 

willful misrepresentation of a material 

fact in an attestation. 8 U.S.C. 

1182(t)(3)(E). Penalties for failure to 

meet conditions of the E–3 labor 

attestations are the same as those under 

the H–1B1 program. Enforcement of E–

3 labor attestations is handled by the 

Wage and Hour Division, Employment 

Standards Administration (ESA), of 

DOL. 

III. Overview of Regulatory Changes 

As summarized in section II above, 

the Act requires the Department to align 

the E–3 visa program with the 

requirements of the H–1B and H–1B1 

program. Therefore, this proposed rule 

will amend the H–1B and H–1B1 

regulations in 20 CFR part 655, subparts 

H and I, and extend those subparts’

procedures, with limited exceptions 

based upon statutory requirements, to 

temporary entry and employment under 

E–3 visas as follows. 

The Department is proposing in 

§ 655.0(d) to include the new E–3 visa 

category in the scope and purpose of the 

regulation. This paragraph would be 

expanded to state that the labor 

condition application process applies to 

three categories of nonimmigrants in the 

United States. 

The Department also proposes to add 

§ 655.700(c)(3) to address the process for 

filing labor condition applications 

under the E–3 visa category. DOL’s 

statutory responsibilities regarding the 

E–3 program took effect on the 

enactment date of the Emergency 

Supplemental Appropriations Act on 

May 11, 2005. Pub.L. 109–13, Div. B, 

§ 103(d), 119 Stat. 231, 308 (May 11, 

2005). Subsequently, on July 19, 2005, 

the Department published E–3 

application procedures as a Notice in 

the Federal Register at 70 FR 41430. 

Therefore, E–3 attestations filed on or 

after July 19, 2005, but prior to this 

proposed rule’s effective date, will be 

handled according to the statutory terms 

and the processing procedures that the 

Department has established. 


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Existing § 655.700(c)(4) outlines the 

Department’s protocol for accepting and 

certifying H–1B1 visa LCAs between the 

effective date of the legislation (January 

1, 2004) and the date the Department 

published the Interim Final Rule 

(November 23, 2004). Those LCAs filed 

on or after January 1, 2004, but before 

November 23, 2004, were processed 

under the H–1B1 statutory provisions 

and the processing procedures 

previously published on the 

Department’s Web site. Any LCAs 

received on or after November 23, 2004, 

were processed according to the 

requirements of the Interim Final Rule. 

The Department proposes to amend 

§ 655.700 paragraphs (d)(1) and (d)(2) to 

include the E–3 visa category. 

The Department proposes to amend 

§ 655.700(d)(3) to require employers 

seeking to employ nonimmigrant 

professionals temporarily under E–3 

visas to file labor attestations with the 

Department, which has been amended 

to include ETA Form 9035E (electronic). 

The Department proposes to amend 

§ 655.700(d)(4) to extend the employer 

responsibilities under the H–1B1 

program to E–3. In addition, 

§ 655.700(d)(1), which lists certain H–

1B regulations that are not applicable to 

the H–1B1 program, is proposed to be 

amended to also exclude E–3. Among 

the exclusions listed in paragraph (d)(1) 

are the special attestations related to 

‘‘H–1B-dependent employers’’ and 

‘‘willful violators’’ of the H–1B rules. 

Currently, these provisions only apply 

to H–1B nonimmigrant program and do 

not apply to the H–1B1 program. The 

Department proposes to amend 

§ 655.700 to also exclude the E–3 

nonimmigrant program from the listed 

H–1B provisions. These changes are 

consistent with the statutory 

requirement to align the E–3 program 

with the H–1B1 program. 

The Department proposes amending 

§§ 655.705, 655.715, 655.730 and 

655.740 to include references to the new 

E–3 visa category. 

In § 655.750(a), the reference to 

entering multiple periods of intended 

employment on Forms 9035 and 9035E 

is proposed to be removed. Although 

the language has appeared in the 

regulations, the forms, including the 

new Internet version, historically have 

not included opportunities for 

submitting such information. In 

addition, it has not been the practice of 

employers filing LCAs to include 

multiple periods of intended 

employment on the written forms. 

Section 655.750(a) is proposed to be 

amended to specify the maximum 

validity period for approved E–3 LCAs. 

The Department addressed the validity 

period in 1994 when it adopted the 

current H–1B regulations. At that time, 

the Department decided to adopt a 

three-year period for H–1B visa holders 

because it was consistent with the 

Immigration and Naturalization 

Services’ admission period for such 

workers. 59 FR 65646, 65648–65649 

(December 20, 1994). The same rationale 

applies to the maximum validity period 

for approved E–3 LCAs, which we have 

set at two years to correspond to the 

U.S. Citizenship and Immigration 

Service’s admission period. 

The proposed rule also addresses the 

maximum validity period for a 

nonimmigrant who begins employment 

before the LCA is certified, as is 

authorized by the portability provision 

at section 214(n) of the INA, 8 U.S.C. 

1184(n). Under the proposed rule, the 

maximum validity period for the 

E–3 LCA is two years, which begins on 

the employment date listed on the 

approved LCA. The E–3 LCA validity 

period is unaffected by an employee’s 

change in employers. Therefore, the 

portability of a nonimmigrant has no 

impact on the E–3 LCA maximum 

validity period. 

In § 655.750(b)(2), a process for 

withdrawing E–3 labor condition 

applications has also been proposed 

consistent with statutory requirements. 

Subpart I of this Part is proposed to 

be revised to include the new E–3 visa 

category in the heading. 

As specified above, this NPRM also 

includes technical and clarifying 

amendments to subparts H and I of 20 

CFR Part 655, primarily to include the 

new E–3 visa category. Therefore, 

consistent with the labor condition 

application process under the H–1B and 

H–1B1 programs, employers filing 

under the E–3 program may file 

applications electronically at http:// 

www.foreignlaborcert.doleta.gov. Under 

appropriate circumstances, employers 

may mail applications to: Manager, 

Temporary Programs, U.S. Department 

of Labor, ETA/OFLC, 200 Constitution 

Avenue, NW., Room C–4312, 

Washington, DC 20210. 

IV. Administrative Information 

Executive Order 12866—Regulatory 

Planning and Review: We have 

determined that this 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 E–3 

visa category on behalf of nonimmigrant 

professionals from Australia will not 

have an economic impact of $100 

million or more. Employers seeking to 

employ E–3 nonimmigrant professionals 

will continue to use the same 

procedures and forms presently 

required for the H–1B and H–1B1 

nonimmigrant programs. E–3 visas will 

be subject to annual numerical limits. 

Although this NPRM is not 

economically significant as defined by 

Executive Order 12866, it is a significant 

rule and has therefore been reviewed by 

the Office of Management and Budget 

(OMB). This NPRM is considered 

otherwise significant because it 

implements a new program and must be 

closely coordinated with other Federal 

agencies that are also responsible for 

implementing the E–3 program, such as 

the Departments of State and of 

Homeland Security. 

Regulatory Flexibility Analysis: We 

have notified the Chief Counsel for 

Advocacy, Small Business 

Administration, and made the 

certification under the Regulatory 

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

that this NPRM would not have a 

significant economic impact on a 

substantial number of small entities. 

This rule would implement statutory 

provisions enacted by Congress that 

narrowly extend the scope of DOL’s 

existing H–1B and H–1B1 programs to 

include similar labor attestation filing 

requirements for the temporary entry of 

nonimmigrant Australian professionals 

under the new E–3 visa classification. 

Employers seeking to hire these E–3 

nonimmigrant professionals will use the 

same procedures and forms presently 

required for H–1B and H–1B1 

nonimmigrant professionals. In 

addition, E–3 visas will be subject to an 

annual numerical limit of 10,500 per 

fiscal year. 

Based on E–3 filing data for fiscal year 

2005 (FY 2005), the Department 

estimates that in the upcoming year 

employers will file approximately 833 

attestations with the Department under 

the E–3 program. According to the 

definition of ‘‘small business’’ under the 

Small Business Administration Act, the 

majority of employers filing in FY 2005 

are not categorized as small businesses. 

Under the Small Business 

Administration Act, a small business is 

one that is ‘‘independently owned and 

operated and which is not dominant in 

its field of operation.’’ Further, the 

definition varies from industry to 

industry to the extent necessary to 

properly reflect industry size 

differences. 

The Department determined its size 

standard analysis based on 13 CFR Part 

121 that describes the size standards. In 

terms of the size standards, although 

some employers will file multiple 

attestations with the Department in a 

year the Department does not anticipate 

a significant expansion in filings in this 


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program because the E–3 visa category 

is subject to annual numerical limits. 

The Department further relied on the FY 

2005 data of the major industries that 

applied for E–3 temporary visas with 

the Department to form its analysis. 

The Department determined that the 

following industries predominate in the 

E–3 program: (1) Healthcare and Social 

Assistance industry (attestations filed 

for Medical Residents, Chiropractors, 

Physical Therapists, Acupuncturists, 

Dentists, Physicians, Veterinarians, 

Psychiatrists, Mental Health Counselors, 

and Medical Lab Technicians); (2) 

Educational industry (attestations filed 

for Teachers, Professors, and Tutors); (3) 

Finance and Insurance industry 

(attestations filed for Accountants, 

Business Analysts, Financial Analysts 

and Investor Analysts); and (4) 

Professional, Scientific and 

Technological Industry (attestations 

filed for Computer Programmers, 

Technicians, Information and Support 

Specialists, Software Engineers, and 

Systems and Program Analysts). The 

Department has reviewed the data from 

each of these industries as described 

below to determine that there is no 

significant impact on small businesses. 

In the United States, there are 708,000 

Professional, Scientific and 

Technological small businesses. In FY 

2005, 68 attestations were filed with the 

Department for positions in the 

Professional, Scientific and 

Technological industry. Using this data, 

we estimate the number of different (or 

non-duplicated) employers who will file 

the expected 68 applications with the 

Department, represents approximately 

0.010% of all Professional, Scientific 

and Technological small businesses. 

In the United States, there are 65,933 

Educational small businesses. In FY 

2005, 43 attestations were filed with the 

Department for positions in the 

Education industry. Using this data, we 

estimate the number of different (or 

non-duplicated) employers who will file 

the expected 43 applications with the 

Department, represents approximately 

0.065% of all Educational small 

businesses. 

In the United States, there are 560,083 

Healthcare and Social Assistance small 

businesses. In FY 2005, 33 attestations 

were filed with the Department for 

positions in the Healthcare and Social 

Assistance industry. Using this data, we 

estimate the number of different (or 

non-duplicated) employers who will file 

the expected 33 applications with the 

Department, represents approximately 

0.006% of all Healthcare and Social 

Assistance small businesses. 

In the United States, there are 259,846 

Finance and Insurance small businesses. 

In FY 2005, 26 attestations were filed 

with the Department for positions in the 

Finance and Insurance industry. Using 

this data, we estimate the number of 

different (or non-duplicated) employers 

who will file the expected 26 

applications with the Department, 

represents approximately 0.010% of all 

Finance and Insurance small businesses. 

For the reasons stated above, DOL does 

not believe this proposed rule will 

impact a substantial number of small 

entities. 

Moreover, the Department of Labor 

does not believe this proposed rule 

would have a significant economic 

impact on small businesses. First, the 

Department does not require employers 

to submit a filing fee for the H–1B1 

program, which is consistent with past 

practice. Therefore, under this NPRM, 

an employer would submit an E–3 visa 

application to the Department at no 

cost. Second, the Department estimates 

that it takes less than thirty minutes to 

complete Form ETA 9035E or Form ETA 

9035. Given that the Department did not 

add fields to the OMB approved forms, 

no additional time is required to prepare 

and submit the forms. Therefore, under 

this NPRM, an employer would spend 

the same amount of time preparing and 

submitting Form ETA 9035E or Form 

ETA 9035 for the H–1B1 program as the 

employer would for application under 

the H–1B program. In sum, the 

attestation and filing activities under 

this NPRM are no different from those 

required under the existing H–1B 

program and this NPRM establishes no 

additional economic burden on small 

entities. 

Unfunded Mandates Reform Act of 

1995: This NPRM would 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 

NPRM 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. Further, because the 

Department certified that this rule is not 

an economically significant rule under 

Executive Order 12866, we certify also 

that it is not a major rule under 

SBREFA. Therefore, this NPRM would 

not result in an annual effect on the 

economy of $100 million or more; cause 

a major increase in costs or prices; or 

have 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 proposed 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 as described by 

Executive Order 13132. Therefore, the 

Department has determined that this 

proposed rule will not have a sufficient 

federalism implication to warrant the 

preparation of a summary impact 

statement. 

Assessment of Federal Regulations 

and Policies on Families: This NPRM 

does not affect family well-being. 

Paperwork Reduction Act: Forms and 

information collection requirements 

related to the Department’s E–3, H–1B, 

and H–1B1 programs under 20 CFR part 

655, subpart H, are approved currently 

under OMB control number 1205–0310 

(expiration date November 30, 2008). 

This NPRM does not include a 

substantive or material modification of 

that collection of information. Existing 

H–1B/H–1B1 paperwork forms and 

filing procedures will be used by 

potential employers of an additional 

category of foreign temporary workers—

nationals from Australia. Because E–3 

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. 

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 NonImmigrant Aliens in Specialty 

Occupations.’’

List of Subjects in 20 CFR Part 655 

Administrative practice and 

procedure, Agriculture, Aliens, 

Australia, Chile, Employment, Forest 

and forest products, Health professions, 

Immigration, Labor, Longshore work, 

Migrant labor, Penalties, Reporting 

requirements, Singapore, Students, 

Wages. 

Accordingly, we propose that 20 CFR 

part 655, Code of Federal Regulations, 

be amended as follows: 


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1654 Federal Register / Vol. 72, No. 8 / Friday, January 12, 2007 / Proposed Rules 

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. 8 

U.S.C. 1101(a)(15)(E)(iii), 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. Revise § 655.0(d) to read as follows: 

§ 655.0 Scope and purpose of Part. 

* * * * * 

(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: H–1B visas for temporary 

employment in specialty occupations or 

as fashion models of distinguished merit 

and ability; 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 E–3 visas for nationals of the 

Commonwealth of Australia for 

temporary employment in a specialty 

occupation. Subpart I of this part 

establishes the enforcement provisions 

that apply to the H–1B, H–1B1 and E–

3 visa programs. 

* * * * * 

3. Revise the heading of subpart H to 

read as follows: 

Subpart H—Labor Condition 

Applications and Requirements for 

Employers Seeking To Employ 

Nomimmigrants on H–1B Visas in 

Specialty Occupations and as Fashion 

Models, and Requirements for 

Employers Seeking To Employ 

Nonimmigrants on H–1B1 and E–3 

Visas in Specialty Occupations 

4. Amend § 655.700 by revising the 

section heading and introductory text, 

paragraphs (c)(3), (d)(1), (d)(2), (d)(3), 

(d)(4)(i) and (d)(4)(ii), and adding new 

paragraph (c)(4) to read as follows: 

§ 655.700 What statutory provisions 

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

and E–3 nonimmigrants and how do 

employers apply for H–1B, H–1B1, and 

E–3 visas? 

Under the E–3 visa program, the 

Immigration and Nationality Act (INA), 

as amended, permits certain 

nonimmigrant treaty aliens to be 

admitted to the United States solely to 

perform services in a specialty 

occupation (INA section 

101(a)(15)(E)(iii)). Under the H–1B1 visa 

program, the INA permits nonimmigrant 

professionals in specialty occupations 

from countries with which the United 

States has entered into certain 

agreements that are identified in section 

214(g)(8)(A) of the INA to temporarily 

enter the United States for employment 

in a specialty occupation. Employers 

seeking to employ nonimmigrant 

workers in specialty occupations under 

H–1B, H–1B1 or E–3 visas must file a 

labor condition application with the 

Department of Labor as described in 

§ 655.730(c) and (d). Certain 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 § 655.705, 

apply only to H–1B nonimmigrants. The 

procedures for receiving an E–3 or H–

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

3 or H–1B1 visa after the attestation 

process is certified by the Department of 

Labor, are identified in the regulations 

and procedures of the Department of 

State and the United States Citizenship 

and Immigration Services (USCIS) of the 

Department of Homeland Security. 

Consult the Department of State 

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

(http://uscis.gov/) Web sites and 

regulations for specific instructions 

regarding the E–3 and H–1B1 visas. 

* * * * * 

(c) * * * 

(3) E–3 visas: 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 E–3 visa 

classification in specialty occupations 

under INA section 101(a)(15)(E)(iii) (8 

U.S.C. 1101(a)(15)(E)(iii)). This 

paragraph (c)(3) applies to labor 

condition applications filed on or after 

(this will be the date of publication of 

the final rule in the Federal Register). 

E–3 labor condition applications filed 

prior to that date but on or after May 11, 

2005 (i.e., the effective date of the 

statute), will be processed according to 

the E–3 statutory terms and the E–3 

processing procedures published on 

July 19, 2005 in the Federal Register at 

74 FR 41434. 

(4) H–1B1 visas: Subject to paragraph 

(d) of this section, subparts H and I of 

this part apply to all employers seeking 

to employ foreign workers under the H–

1B1 visa classification in specialty 

occupations described in INA section 

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

1101(a)(15)(H)(i)(b1)), under the U.S.- 

Chile and U.S.-Singapore Free Trade 

Agreements as long as the Agreements 

are in effect. (INA section 214(g)(8)(A) (8 

U.S.C. 1184(g)(8)(A)). This paragraph 

(c)(4) applies to H–1B1 labor condition 

applications filed on or after November 

23, 2004. Further, H–1B1 labor 

condition applications filed prior to that 

date but on or after January 1, 2004, the 

effective date of the H–1B1 program, 

will be handled according to the H–1B1 

statutory terms and the H–1B1 

processing procedures as described in 

paragraph (d)(3) of this section. 

(d) Nonimmigrant on E–3 or H–1B1 

visas—(1) Exclusions. The following 

sections in this subpart and in subpart 

I of this part do not apply to E–3 and 

H–1B1 nonimmigrants, but apply only 

to H–1B nonimmigrants: §§ 655.700(a), 

(b), (c)(1) and (2); 655.705(b) and (c); 

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); and 

655.805(a)(7), (8) and (9). Further, any of 

the following references in subparts H 

or I of this part, whether in the excluded 

sections listed above or elsewhere, do 

not apply to E–3 and 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 and E–3 

visas, are available to such fashion 

models); references to a petition process 

before the DHS (the petition process 

applies only to H–1B, but not to initial 

H–1B1 and E–3 visas); references to 

additional attestation obligations of H–

1B-dependent employers and employers 


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found to have willfully violated the H–

1B program requirements (these 

provisions do not apply to the H–1B1 

and E–3 programs); and references 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 and 

E–3 nonimmigrants). 

(2) Terminology. For purposes of 

subparts H and I of this part, except in 

those sections identified in paragraph 

(d)(1) of this section as inapplicable to 

E–3 and H–1B1 nonimmigrants and as 

otherwise excluded: 

(i) The term ‘‘H–1B’’ includes ‘‘E–3’’

and ‘‘H–1B1’’ (INA section 

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

and 

(ii) The term ‘‘labor condition 

application’’ or ‘‘LCA’’ includes a labor 

attestation made under section 212(t)(1) 

of the INA for an E–3 or H–1B1 

nonimmigrant professional classified 

under INA section 101(a)(15)(E)(iii) and 

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

(3) Filing procedures for E–3 and H–

1B1 labor attestations. Employers 

seeking to employ an E–3 or H–1B1 

nonimmigrant must submit a completed 

ETA Form 9035 or ETA Form 9035E 

(electronic) to DOL in the manner 

prescribed in §§ 655.720 and 655.730. 

Employers must indicate on the form 

whether the labor condition application 

is for an ‘‘E–3 Australia,’’ ‘‘H–1B1 

Chile’’ or ‘‘H–1B1 Singapore’’

nonimmigrant. Any changes in the 

procedures and instructions for 

submitting labor condition applications 

will be provided in a notice published 

in the Federal Register and posted on 

the ETA Web site at http:// 

www.foreignlaborcert.doleta.gov. 

(4) Employer’s responsibilities 

regarding E–3 and H–1B1 labor 

attestation. Each employer seeking an 

E–3 or H–1B1 nonimmigrant in a 

specialty occupation has several 

responsibilities, as described more fully 

in subparts H and I of this part, 

including the following: 

(i) By submitting a signed and 

completed 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 E–3 or H–

1B1 nonimmigrant. These attestations 

are specifically identified and 

incorporated in the LCA, and are fully 

described on Form ETA 9035CP (cover 

pages). 

(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 according to the procedures of 

those agencies. 

* * * * * 

5. Amend § 655.705 as follows: 

a. Revise the section heading to read 

as set forth below. 

b. Amend paragraph (c), by removing 

the phrase ‘‘employer responsibilities 

under the H–1B1 program’’ and adding 

in lieu thereof the phrase ‘‘employer’s 

responsibilities under the H–1B1 and E–

3 programs’’. 

§ 655.705 What Federal agencies are 

involved in the H–1B, H–1B1, and E–3 

programs, and what are the responsibilities 

of those agencies and of employers? 

* * * * * 

6. Amend § 655.715 as follows: 

a. Amend paragraph (1) in definition 

of Specialty Occupation by removing 

the phrase ‘‘For purposes of the H–1B 

(not including H–1B1) program’’ and 

adding in lieu therof the phrase ‘‘For 

purposes of the E–3 and H–1B programs 

(but not the H–1B1 program)’’. 

b. Revise the definition of Employer 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, H–1B1 or E–3 

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

the case of an H–1B nonimmigrant (not 

including E–3 and H–1B1 

nonimmigrants), 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 (DHS) on behalf of the 

nonimmigrant is deemed to be the 

employer of that nonimmigrant. In the 

case of an E–3 and 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. 

* * * * * 

7. Amend § 655.720(a) by removing 

the phrase ‘‘regarding H–1B and H–1B1 

nonimmigrants’’ and by adding in lieu 

thereof the phrase ‘‘regarding H–1B, H–

1B1 and E–3 nonimmigrants’’. 

8. Amend § 655.730 as follows: 

a. Revise the introductory text to read 

as set forth below. 

b. In paragraph (c)(4)(vii), remove the 

parenthetical phrase ‘‘(and not 

applications regarding H–1B1 

nonimmigrants) and add in lieu thereof 

the parenthetical phrase ‘‘(and not 

application regarding H–1B1 and E–3 

nonimmigrants)’’. 

c. In paragraph (c)(5), remove the 

sentence ‘‘Separate LCAs must be filed 

for H–1B and H–1B1 nonimmigrants.’’

and add in lieu thereof the sentence 

‘‘Separate LCAs must be filed for H–1B, 

H–1B1, and E–3 nonimmigrants.’’

d. In paragraph (d)(5), remove the 

parenthetical phrase ‘‘(and not regarding 

H–1B1 nonimmigrants)’’ and add in lieu 

thereof the parenthetical phrase ‘‘(and 

not applications regarding H–1B1 or E–

3 nonimmigrants). 

§ 655.730 What is the process for filing a 

labor condition application? 

This section applies to the filing of 

labor condition applications for H–1B, 

H–1B1, and E–3 nonimmigrants. 

* * * * * 

9. Amend § 655.740(a)(2)(ii) by 

removing 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’’ 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 or E–3 

nonimmigrants under section 212(t)(3) 

of the INA.’’

10. In § 655.750, paragraphs (a) and 

(b)(2) are revised to read as follows: 

§ 655.750 What is the validity period of the 

labor condition application? 

(a) Validity of certified labor 

condition applications. A labor 

condition application (LCA) certified 

under § 655.740 is valid for the period 

of employment indicated by the 

authorized DOL official on Form ETA 

9035E or ETA 9035. The validity period 

of a labor condition application will not 

begin before the application is certified 

and the period of authorized 

employment begins. If the approved 

application is the initial LCA issued for 

the nonimmigrant, the period of 

authorized employment must not 

exceed 3 years for a labor condition 

application issued on behalf of an H–1B 

or H–1B1 nonimmigrant and must not 

exceed 2 years for a labor condition 

application issued on behalf of an E–3 

nonimmigrant. If a nonimmigrant is 

employed before the LCA is certified, 

the period of authorized employment in 

the aggregate is based on the first date 

of employment and ends: 

(1) In the case of an H–1B or H–1B1 

LCA, on the latest date indicated or 

three years after the employment start 


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date under the LCA, whichever comes 

first; or 

(2) In the case of an E–3 LCA, on the 

latest date indicated or two years after 

the employment start date under the 

LCA, whichever comes first. 

(b) * * * 

(2) Requests for withdrawals must be 

in writing and must be sent to ETA, 

Office of Foreign Labor Certification. 

ETA will publish the mailing address, 

and any future mailing address changes, 

in the Federal Register, and will also 

post the address on the DOL Web site 

at http:// 

www.foreignlaborcert.doleta.gov. 

* * * * * 

11. Amend § 655.760(b) by removing 

the phrase ‘‘H–1B1 nonimmigrants’’ and 

adding in lieu thereof the phrase 

‘‘regarding H–1B1 and E–3 

nonimmigrants.’’

12. Revise the heading of subpart I to 

read as follows: 

Subpart I—Enforcement of H–1B Labor 

Condition Applications and H–1B1 and 

E–3 Labor Attestations 

Signed in Washington, DC, this 3rd day of 

January, 2007. 

Emily Stover DeRocco, 

Assistant Secretary, Employment and 

Training Administration, Labor. 

Paul DeCamp, 

Administrator, Wage and Hour Division, 

Employment Standards Administration, 

Labor. 

[FR Doc. 07–44 Filed 1–11–07; 8:45 am] 

BILLING CODE 4510–30–P 


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