[Federal Register Volume 72, Number 8 (Friday, January 12, 2007)]
[Proposed Rules]
[Pages 1650-1656]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 07-44]



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Part V





 Department of Labor





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Employment and Training Administration



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20 CFR Part 655



Labor Condition Application Requirements for Employers Seeking To Use 
Nonimmigrants on E-3 Visas in Specialty Occupations; Filing Procedures; 
Proposed Rule

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

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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.

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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:
    <bullet> Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
    <bullet> E-mail: <a href="/cdn-cgi/l/email-protection#3a7f0914595557575f544e497a5e5556145d554c"><span class="__cf_email__" data-cfemail="1d582e337e7270707873696e5d797271337a726b">[email protected]</span></a>. Include RIN number 1205-AB43 
in the subject line of the message.
    <bullet> Mail: U.S. Department of Labor, Employment and Training 
Administration, 200 Constitution Avenue, NW., Room N-5641, Washington, 
DC 20210.
    <bullet> 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 toll-free 
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, Sec.  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

[[Page 1651]]

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:
    <bullet> 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;
    <bullet> It will provide working conditions for the nonimmigrant 
that will not adversely affect working conditions for similarly 
employed workers;
    <bullet> There is no strike or lockout in the course of a labor 
dispute in the occupational classification at the worksite; and
    <bullet> 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 Sec.  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 Sec.  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 Sec.  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, Sec.  
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.

[[Page 1652]]

    Existing Sec.  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 Sec.  655.700 paragraphs (d)(1) 
and (d)(2) to include the E-3 visa category.
    The Department proposes to amend Sec.  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 Sec.  655.700(d)(4) to extend the 
employer responsibilities under the H-1B1 program to E-3. In addition, 
Sec.  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 Sec.  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 Sec. Sec.  655.705, 655.715, 
655.730 and 655.740 to include references to the new E-3 visa category.
    In Sec.  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 Sec.  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

[[Page 1653]]

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 foreign-based 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 Non-Immigrant 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:

[[Page 1654]]

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 Sec.  655.0(d) to read as follows:


Sec.  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 Sec.  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:


Sec.  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 Sec.  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 Sec.  
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: Sec. Sec.  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

[[Page 1655]]

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 Sec.  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 Sec. Sec.  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 Sec.  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''.


Sec.  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 Sec.  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:


Sec.  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 Sec.  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 Sec.  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).


Sec.  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 Sec.  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 Sec.  655.750, paragraphs (a) and (b)(2) are revised to read 
as follows:


Sec.  655.750  What is the validity period of the labor condition 
application?

    (a) Validity of certified labor condition applications. A labor 
condition application (LCA) certified under Sec.  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

[[Page 1656]]

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 Sec.  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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