72556 Federal Register / Vol. 70, No. 232 / Monday, December 5, 2005 / Rules and Regulations 

1See 6 U.S.C. 236(b), 552(d), and 557. 

DEPARTMENT OF LABOR 

Employment and Training 

Administration 

20 CFR Part 655 

RIN 1205–AB39 

Labor Condition Applications and 

Requirements for Employers Using 

Nonimmigrants on H–1B Visas in 

Specialty Occupations and as Fashion 

Models, and Labor Attestation 

Requirements for Employers Using 

Nonimmigrants on H–1B1 Visas in 

Specialty Occupations; Filing 

Procedures 

AGENCY: Employment and Training 

Administration, Labor. 

ACTION: Final rule. 

SUMMARY: The Employment and 

Training Administration (ETA) of the 

Department of Labor (the Department or 

DOL) is amending its regulations related 

to the H–1B and H–1B1 programs to 

generally require employers to use Webbased electronic filing of labor condition 

applications (LCAs). This final rule also 

implements technical and clarifying 

amendments to ETA’s H–1B and H–1B1 

regulations to correct terminology and 

addresses, update internal agency 

procedures, and clarify text. Among 

these amendments are provisions to 

reflect Congressional reinstatement of 

certain attestations and obligations 

applicable to employers that are H–1B 

dependent or have committed willful 

violations of H–1B requirements. 

DATES: Effective Date: This final rule is 

effective on January 4, 2006. 

FOR FURTHER INFORMATION CONTACT: 

Rachel Wittman, Senior Policy Advisor, 

Division 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). 

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. 

SUPPLEMENTARY INFORMATION

I. Introduction 

On April 1, 2005, the Department 

published in the Federal Register a 

Notice of Proposed Rulemaking (NPRM) 

to amend its regulations related to the 

H–1B and H–1B1 programs to generally 

require employers to use Web-based 

electronic filing of labor condition 

applications (LCAs). The NPRM also 

proposed technical and clarifying 

amendments to ETA’s H–1B and H–1B1 

regulations to correct terminology and 

addresses, update internal agency 

procedures, and clarify text. Among 

those proposed amendments were 

provisions to reflect Congressional 

reinstatement of certain attestation 

obligations applicable to employers that 

are H–1B dependent or have committed 

willful violations of H–1B requirements. 

70 FR 16774 (April 1, 2005). Public 

comments were invited through May 2, 

2005. 

II. Statutory Authority and Background 

The Immigration and Nationality Act, 

as amended, (INA or Act) assigns 

responsibilities to the Department 

relating to the entry and employment in 

the United States of certain categories of 

employment-based immigrants and 

nonimmigrants, including under the H– 

1B and H–1B1 visas. See INA § 101 et 

seq. [8 U.S.C. 1101 et seq.]. 

The H–1B visa program permits 

admission to the United States, on a 

nonimmigrant basis, of foreign workers 

who will temporarily perform services 

in a specialty occupation or as a fashion 

model of distinguished merit and 

ability. See 8 U.S.C. 1101(a)(15)(H)(i)(b), 

1182(n), and 1184(c), (g), and (i). 

Specialty occupations under the H–1B 

program are those requiring the 

theoretical and practical application of 

a body of highly specialized knowledge 

and the attainment of a bachelor’s or 

higher degree (or its equivalent) in the 

specific specialty as a minimum for 

entry into the occupation in the United 

States. 8 U.S.C. 1184(i)(1). 

The H–1B1 visa was created on 

January 1, 2004, as part of Congress’ 

approval of the United States-Chile Free 

Trade Agreement and the United StatesSingapore Free Trade Agreement. The 

visa permits the temporary entry and 

employment in the United States of 

professionals in specialty occupations 

from countries with which the United 

States has entered into agreements 

identified in section 1184(g)(8)(A) of the 

Immigration and Nationality Act. See 

INA, 8 U.S.C. 1101(a)(15)(H)(i)(b1), 

1182(t), 1184(g)(8)(A), and 1184(i). The 

statute now covers nationals of Chile 

and Singapore. 8 U.S.C. 1184(g)(8)(A). 

Under the INA amendments creating the 

H–1B1 visa, the Department of Labor’s 

responsibilities regarding H–1B1 visas 

are required to be implemented in a 

manner similar to the H–1B program. To 

implement the H–1B1 program in 

accordance with statutory requirements, 

on November 23, 2004, DOL issued an 

interim final rule extending the H–1B 

regulations found at 20 CFR part 655, 

subparts H and I, to the H–1B1 program, 

with limited exceptions consistent with 

statutory requirements. See 69 FR 68222 

(November 23, 2004). (Prior to 

publication of the H–1B1 Interim Final 

Rule, DOL conducted its H–1B1 

responsibilities in accordance with the 

statute and procedures posted on the 

DOL Web site prior to the H–1B1 visa 

effective date of January 1, 2004.) 

Before H–1B or H–1B1 status for a 

foreign worker will be approved by the 

United States Citizenship and 

Immigration Services (USCIS) of the 

Department of Homeland Security 

(formerly the Immigration and 

Naturalization Service or INS),1 the 

Secretary of Labor must certify a ‘‘labor 

condition application’’ or LCA filed by 

the foreign worker’s prospective 

employer. See 8 U.S.C. 

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

and (t); 20 CFR part 655, subpart H. In 

completing the ‘‘labor condition 

application’’ or LCA in paper form 

(Form ETA 9035) or electronic form 

(Form ETA 9035E), an employer must 

specifically indicate, among other 

things, the H–1B or H–1B1 

nonimmigrant’s prospective job title, the 

number of H–1B or H–1B1 

nonimmigrants sought, the 

nonimmigrant’s anticipated period of 

employment and rate of pay, and the 

location where the H–1B or H–1B1 

nonimmigrant(s) will work. 

Additionally, the employer attests to 

four statements: 

1. H–1B or H–1B1 nonimmigrants will 

be paid at least the local prevailing wage 

or the actual wage level paid by the 

employer to others with similar 

experience and qualifications, 

whichever is higher; 

2. The employment of H–1B or H–1B1 

nonimmigrants will not adversely affect 

the working conditions of U.S. workers 

similarly employed; 

3. There is not a strike or lockout in 

the course of a labor dispute in the 

occupation in which H–1B or H–1B1 

nonimmigrants will be employed at the 

place of employment; and 

4. Notice of the application has been 

provided to workers employed in the 

occupations in which H–1B or H–1B1 

nonimmigrants will be employed. See 8 

U.S.C. 1182(n)(1) and (t)(1); 20 CFR 

655.705(c)(1), 655.730(d), 655.731 

through 655.734; Forms ETA 9035E, 

9035, and 9035CP (Cover Pages). While 

DOL administers and enforces the labor 

condition application portion of the H– 

1B and H–1B1 program, USCIS 

identifies and defines the occupations 

covered by the H–1B and H–1B1 

category (except as already defined in 

the Chile and Singapore Free Trade 

Federal Register / Vol. 70, No. 232 / Monday, December 5, 2005 / Rules and Regulations 72557 

Agreements) and determines an alien’s 

qualifications for such occupations. 

Congress enacted the ‘‘H–1B Visa 

Reform Act of 2004’’ as part of the 

Consolidated Appropriations Act of 

2005. See P.L. 108–447, 118 Stat. 2809, 

Division J, Title IV, Subtitle B 

(December 8, 2004). Among other 

provisions, the H–1B Visa Reform Act 

reinstated, effective March 8, 2005, 

special attestation requirements for 

employers who are H–1B dependent or 

who have been found to have 

committed willful violations of H–1B 

requirements or misrepresentations of a 

material fact during the five-year period 

prior to filing an H–1B LCA. See P.L. 

108–447 at Division J, § 422(a). 

Reinstatement was achieved by deleting 

from INA Section 212(n)(1)(E)(ii) the 

sunset date of October 1, 2003, 

previously applicable to the H–1B 

dependent employer and willful 

violator provisions. Pursuant to this INA 

amendment, H–1B dependent 

employers and willful violator 

employers who file H–1B applications 

after March 7, 2005, generally must 

attest: The employer did not displace 

and will not displace a U.S. worker 

within the period of 90 days before and 

after filing a petition for an H–1B 

nonimmigrant; the employer will not 

place H–1B nonimmigrants with a 

secondary employer unless the 

employer has inquired if the secondary 

employer has displaced or intends to 

displace a U.S. worker within the period 

of 90 days before and after the 

placement of the H–1B nonimmigrant; 

the employer took good faith steps prior 

to filing the H–1B application to recruit 

U.S. workers; and, finally, the employer 

has offered the job to any U.S. applicant 

who is equally or better qualified than 

the H–1B nonimmigrant for the job. 

III. Overview of Regulatory Changes 

The regulatory changes are 

summarized below. See the NPRM at 70 

FR 16776 for a more detailed discussion 

of the regulatory changes, including the 

Department’s rationale for proposing the 

changes. 

This final rule requires electronic 

filing and processing of H–1B and H–

1B1 labor condition applications (LCAs) 

except in limited circumstances where a 

physical disability or lack of Internet 

access prevents the employer from filing 

electronically. This transition to 

primarily electronic filing will reduce 

paper-based LCA filings now submitted 

by U.S. Mail and facsimile. No changes 

are made through this final rule to the 

existing LCA forms (Forms ETA 9035, 

9035E, and 9035CP) or to the current 

electronic filing procedures. This final 

rule amends the H–1B and H–1B1 

regulations at §§ 655.700, 655.705, 

655.720, 655.730 and 655.760 to state 

the requirements of electronic filing, 

except in limited circumstances, and to 

remove references to filing by facsimile 

and/or U.S. Mail. 

In addition to the proposed regulatory 

changes to institute a general 

requirement for electronic filing of 

LCAs, this final rule also contains a 

number of technical amendments to 

ETA’s H–1B and H–1B1 regulations to 

correct terminology and addresses, 

update internal agency procedures, and 

clarify text. Specifically, this final rule 

amends the definition of the 

Immigration and Naturalization Service 

(INS) at § 655.715 to reflect that INS’’

functions in relation to H–1B visas now 

are performed by the U.S. Citizenship 

and Immigration Services (USCIS) of the 

Department of Homeland Security. The 

§ 655.715 definition of State 

Employment Security Agency or SESA 

is also amended to reflect these state 

agencies now are known as ‘‘State 

Workforce Agencies’’ or SWAs. 

This final rule also amends the H–1B 

and H–1B1 regulations at §§ 655.715, 

655.720, 655.721, and 655.740 to 

remove references to the previous role 

of ‘‘Regional Certifying Officers’’ and 

ETA’s Regional Offices in processing 

labor condition applications and taking 

other actions regarding LCAs. These 

regulatory references are unnecessary 

and are deleted, because ETA Regional 

Offices no longer process LCAs. This 

final rule also amends § 655.720(e) 

(previously § 655.720(d)) to reflect the 

ETA National Office, not ETA Regional 

Offices, handles matters regarding the 

H–1B and H–1B1 programs, and to 

provide a clearer reference to the 

regulatory section that identifies how 

employers may challenge state 

prevailing wage determinations. 

Consistent with the deletion of 

references to a role regarding LCAs for 

ETA Regional Offices, this final rule 

removes § 655.721, which currently 

provides the addresses of ETA Regional 

Offices. 

A number of amendments are 

included in this final rule to reflect 

Congress’ reinstatement, effective March 

8, 2005, of special attestation 

requirements for employers who are H–

1B dependent or willful violators. As 

discussed in Section I above, these 

special attestation requirements expired 

on September 30, 2003. Provisions 

reflecting the responsibility of 

employers who file applications 

regarding H–1B nonimmigrants (but not 

regarding H–1B1 nonimmigrants) to 

provide information regarding H–1B 

dependent status and these special 

attestations are found at 

§§ 655.705(c)(1), 655.730(c)(2), 

(c)(4)(vii), and (d)(5), and 655.736(c), 

(g)(1), (g)(2) and (g)(3). As reflected in 

these sections, the special attestation 

requirements for H–1B dependent 

employers and willful violators apply to 

H–1B labor condition applications filed 

with the Department on or after March 

8, 2005. These special attestation 

requirements do not apply to H–1B 

labor condition applications filed from 

October 1, 2003 through March 7, 2005, 

or before January 19, 2001. An LCA filed 

during a period when the special 

attestation obligations for H–1B 

dependent employers and willful 

violators were not in effect (that is prior 

to January 19, 2001, and from October 

1, 2003 through March 7, 2005) may not 

be used by an H–1B dependent 

employer or willful violator to support 

either petitions for new H–1B 

nonimmigrants or requests for 

extensions of status for existing H–1B 

nonimmigrants. 

Additionally, the following sections 

are revised to reflect address changes: 

(1) in § 655.710(b) and 

§ 655.734(a)(1)(ii), the address for filing 

complaints with the Department of 

Justice arising under 8 U.S.C. 

1182(n)(1)(G)(i)(II) of the INA; (2) in 

§ 655.720(c) (previously § 655.720(b)), 

the address for filing LCAs by U.S. Mail; 

and (3) in § 655.750(b)(2), the address 

for withdrawing previously filed LCAs. 

In the case of both the address for filing 

LCAs by U.S. Mail (§ 655.720(c)) and for 

withdrawing previously filed LCAs 

(§ 655.750(b)(2)), because ETA 

anticipates addresses may change over 

time, the final rule provides that 

addresses will be published in a notice 

in the Federal Register and posted on 

DOL’s Web site at http:// 

www.ows.doleta.gov/foreign/. 

Finally, where regulatory sections or 

subsections are amended to reflect the efiling requirement, these sections have 

been edited for clarity and to update 

terminology, such as replacing INS with 

USCIS. 

IV. Discussion of Comments 

The Department invited comments on 

the proposed elimination of options to 

file LCAs for the H–1B and H–1B1 

programs by U.S. Mail and facsimile 

and the requirement of employers to file 

electronically except in limited 

circumstances. The Department also 

stated it was particularly interested in 

receiving comments from small business 

entities on this proposal. 

Four comments were received. One 

was received from an employer, one 

from the American Immigration 

Lawyers Association (AILA) and two 

from practicing attorneys. No comments 

72558 Federal Register / Vol. 70, No. 232 / Monday, December 5, 2005 / Rules and Regulations 

were received from small business 

entities on the Department’s proposal to 

require employers to file electronically. 

Two commenters offered some 

support for the proposed rule. AILA 

stated: ‘‘In general AILA applauds the 

Department for its efforts to streamline 

the filing of Labor Condition 

Applications online, which is at the 

heart of the proposed regulation. Such 

a modification to the LCA program 

recognizes the need to replace 

inefficient procedures—mailed or faxed 

applications—with new procedures that 

take into account modern business 

practices.’’ However, as discussed 

below, AILA was also concerned there 

were some employers lacking Internet 

access and some ‘‘older employer 

representatives’’ who would find online 

submission of LCAs troublesome. 

The Microsoft Corporation stated it 

‘‘applauds the DOL in its proposal to 

dispense with paper submission of 

LCAs’’ and the ‘‘proposed rule is a 

welcome step in automating the filing 

and adjudication of immigration-related 

government forms.’’ However, as 

discussed below, Microsoft was 

concerned the rule does not adequately 

detail privacy and security provisions. 

One attorney commenter objected to 

the provision in § 655.730(b) that 

precludes the submission of on-line 

LCAs more than 6 months in advance of 

the beginning date of the period of 

intended employment shown on the 

LCA. The commenter maintained in 

many instances not all information is 

available to prepare an on-line LCA and 

employer representatives file a facsimile 

LCA to enable them to secure the 

missing information from the employer 

and the employer’s required signature at 

the same time. The thrust of the 

comment appeared to be that by filing 

an incomplete LCA more than 6 months 

in advance of the date of need, the 

employer would maintain its place in 

line for obtaining a certified LCA and 

filing a petition with USCIS. Such a 

practice would be contrary to the 

Department’s regulations and current 

administrative practice. The current 

regulation at § 655.30(b) contains 

substantively the same provision as the 

proposed rule regarding the earliest 

point in time at which an LCA may be 

filed (i.e., no more than 6 months in 

advance of the beginning date for 

employment), and this restriction 

applies to applications submitted by 

facsimile, U.S. Mail, and electronically. 

The existing regulations also state it is 

the employer’s responsibility to ensure 

that a complete and accurate LCA is 

received by ETA. See § 655.730(b). The 

Department will not certify 

applications, whether complete or 

incomplete, submitted more than 6 

months in advance of the first date of 

need. The Department returns such 

prematurely filed applications to the 

employer in accordance with 20 CFR 

656.740(a)(2)(ii). It should also be noted 

the current USCIS regulation at 8 CFR 

214.2(h)(9)(B) provides: ‘‘(t)he petition 

may not be filed or approved earlier 

than six months before the date of actual 

need for the beneficiary’s services or 

training.’’ Accordingly, the Department 

has not made any changes in the final 

rule to the provision at § 655.730(b) 

which provides, in relevant part, that 

‘‘(a)n LCA shall be submitted by the 

employer to ETA in accordance with the 

procedure prescribed in § 655.720 no 

earlier than six months before the 

beginning date of the period intended 

employment shown on the LCA.’’

AILA was concerned there were some 

employers and attorneys seeking H–1B 

or H–1B1 visas that lack computer and 

Internet access. AILA hypothesized that 

a ‘‘small’’ group of recent immigrants 

who are themselves entrepreneurs 

seeking to augment their businesses 

with the help of key H–1B or H–1B1 

professionals have neither the technical 

need for Internet access in their 

business nor the ability to go to their 

local libraries during business hours to 

file LCAs, maintain LCA accounts, and 

withdraw LCAs when necessary. The 

end result of the NPRM’s proposed 

requirement of electronic filing, 

according to AILA, would be to cut such 

employers out of the H–1B and H–1B1 

process entirely. 

We think it is highly unlikely that 

employers using the H–1B or H–1B1 

program for professionals in ‘‘specialty 

occupations’’ (and under H–1B, models 

‘‘of distinguished merit and ability’’) 

lack computer and Internet access. AILA 

did not identify any specific immigrant 

entrepreneur using the H–1B or H–1B1 

program without Internet access, and no 

such entrepreneur, employer, or 

employer’s representative provided 

comments regarding Internet access, 

although the preamble to the proposed 

rule noted that the Department was 

particularly interested in receiving 

comments from small business entities. 

Nor have we encountered in our 

program experience such employers or 

agents using the H–1B or H–1B1 

program and yet lacking Internet access. 

Further, as pointed out in the preamble 

to the proposed rule, a high percentage, 

if not most, of the positions sought by 

H–1B employers are in information, 

computer, and other high technology 

fields (see 70 FR at 16776), and the 

Department believes it highly unlikely 

that employers seeking H–1B workers in 

information, computers, and other high 

technology fields would not have access 

to computers or the Internet. 

However, in the spirit of caution, the 

Department is making a special mail 

filing procedure available to employers 

without Internet access as well as to 

employers with physical disabilities. 

Under the new procedures set forth in 

§ 655.720(c) employers may petition the 

Department for approval to submit their 

LCAs by U.S. Mail instead of the 

electronic filing system by submitting a 

written request to the Chief, Division of 

Foreign Labor Certification. The 

employer cannot submit an LCA by U.S. 

Mail until its request is approved. 

Approval of an employer request to 

submit LCAs by U.S. Mail shall be good 

for one year from the date it is granted. 

AILA also asserted in its comments 

that ‘‘the spirit of the Government 

Paperwork Elimination Act (‘GPEA’) 

seeks not to restrict access to 

government programs but to enhance 

access.’’ AILA also contended that 

Section 1704 of GPEA ‘‘requires federal 

agencies to allow entities that deal with 

an agency the ‘option’ * * * to submit 

information or perform transactions 

with an agency electronically, ‘when 

practicable,’ ’’ but also ‘‘directs’’

(emphasis added) agencies not to limit 

communications ‘‘only to electronic 

submissions or transactions.’’ The 

Department agrees that GPEA is 

intended to enhance access to 

government programs, but disagrees 

with AILA’s interpretation that GPEA 

forbids Federal agency use of electronic 

only information submission 

mechanisms. Rather, Congress enacted 

GPEA in 1998 to promote government 

use of electronic systems for submitting 

and disclosing information, at a time 

when Internet use was just becoming 

widespread. GPEA does not address 

whether electronic-only mechanisms are 

permissible. In any case, the Department 

believes this final rule enhances access 

to the H–1B and H–1B1 programs. As 

described in the preamble to the NPRM, 

by moving to an all-electronic system 

for receiving and adjudicating H–1B and 

H–1B1 labor condition applications, the 

Department will create a more 

responsive and efficient process. The 

Department believes all-electronic filing 

will limit incomplete applications, 

permit more efficient processing of 

LCAs and allow ETA to better capture 

statistics and analyze data related to the 

H–1B and H–1B1 programs. In any case, 

as noted above, the Department has 

decided to make a special mail-filing 

procedure available to employers 

without Internet access as well as to 

employers with physical disabilities. 

AILA also hypothesized there are 

some ‘‘older employer representatives’’

Federal Register / Vol. 70, No. 232 / Monday, December 5, 2005 / Rules and Regulations 72559 

who have ‘‘fallen behind in technical 

prowess’’ and who would find 

electronic submission of H–1B or H–1B1 

applications to be a daunting task. In the 

Department’s opinion, the electronic 

system with its detailed instructions, 

prompts and checks to assist employers 

or their representatives in completing 

the ETA 9035E is less daunting than a 

hard copy submission of the paper Form 

9035. The provision in the electronic 

system of detailed instructions, prompts 

and checks makes it less likely mistakes 

will be made that could result in denial 

of an LCA. Moreover, as discussed 

above, this final rule provides a 

procedure at § 655.20(c) through which 

an employer with a physical disability 

that prevents use of the electronic filing 

system, or an employer lacking access to 

the Internet, may petition the 

Department for approval to submit LCAs 

by U.S. Mail. 

Four comments were submitted that 

are outside the scope of the proposed 

rule. These comments did not address 

the proposed elimination of U.S. Mail 

and facsimile filings, but rather focused 

on provisions of the regulations to 

which we did not propose any 

substantive changes. Two commenters 

objected to the provision in § 655.750(a) 

that ‘‘in the event employment pursuant 

to Section 214(n) of the INA (formerly 

Section 214(m), addressing increased 

portability of H–1B status) commences 

prior to certification of the labor 

certification application, the attestation 

requirements of the subsequently 

certified application shall apply back to 

the first date of employment.’’ The 

NPRM included no substantive changes 

to the current regulation regarding 

Section 214(n), and instead merely 

updated the statutory citation, and, for 

clarity, identified the subject matter. 

Although these comments are outside 

the NPRM’s scope, the Department 

notes that, based on preliminary 

discussion with USCIS staff, we have 

concluded this provision in the 

regulations should be retained. 

Accordingly, this final rule continues 

the language from the current 

regulations providing that, in the case of 

employment pursuant to INA Section 

214(n), attestations shall apply back to 

the first date of employment. 

In another comment outside the scope 

of the NPRM, the Microsoft Corporation 

urged the Department to disclose its 

precautions to protect data privacy and 

how DOL imposes sanctions under 

existing law in cases of disclosure or 

dissemination in violation of law of 

electronic data submitted in an online 

LCA. Microsoft further opposed the 

publication of H–1B data taken from 

submitted LCAs that is posted on the 

Internet at http:// 

www.flcdatacenter.com/CaseH1B.aspx. 

Although the Department considers this 

comment to be outside the scope of the 

proposed rule, the Department notes it 

considers the online system for 

submitting LCAs to be in conformity 

with all standards for data security and 

data privacy that are issued by the 

National Institute of Standards and 

Technology and the Department of 

Labor. Further, the Department has 

determined that none of the information 

it posts at the Web address listed above 

is protected under the Freedom of 

Information Act or the Privacy Act. 

Finally, AILA noted in its comments 

that it had previously submitted 

comments on the special attestation 

requirements regarding H–1B dependent 

employers and willful violators when 

they were first promulgated in the 

current H–1B interim final rule. See 65 

FR 80110 (December 20, 2000) (interim 

final rule). We do not consider this final 

AILA comment to be within the scope 

of the NPRM published in the Federal 

Register on April 1, 2005. The NPRM 

and this final rule identify the period 

during which the special attestations 

apply, consistent with the latest 

Congressional reinstatement of these 

provisions, but do not address the 

substance of these special attestation 

requirements. 

V. Administrative Information 

Executive Order 12866—Regulatory 

Planning and Review: This final rule is 

significant, although not ‘‘economically 

significant’’ within the meaning of 

Executive Order 12866. The final rule 

therefore has been reviewed by the 

Office of Management and Budget 

(OMB). The requirement for allelectronic filing (except in limited 

circumstances) of H–1B and H–1B1 

labor condition applications, and 

corresponding elimination of U.S. Mail 

or facsimile filing options, will not have 

an economic impact of $100 million or 

more because this will not alter the 

required forms or attestations for labor 

condition applications, but rather 

merely alters the method of filing for a 

small portion of participating 

employers. The final rule will alter the 

filing mechanism for less than 10 

percent of the LCAs filed in FY 2004, 

namely those filed by means other than 

electronic filing. While employers 

previously filing by facsimile or U.S. 

Mail will have to change to electronic 

filing, they will be moving to a more 

efficient and rapid processing 

procedure. 

Regulatory Flexibility Act: We have 

notified the Chief Counsel for 

Advocacy, Small Business 

Administration, and made the 

certification pursuant to the Regulatory 

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

that this final rule will not have a 

significant economic impact on a 

substantial number of small entities. 

The factual basis for that certification 

is as follows: Based on past filing data, 

ETA estimates in the upcoming year 

employers will file approximately 

341,000 attestations under the H–1B and 

H–1B1 program as a whole. (Since the 

H–1B program’s inception, the number 

of H–1B attestations has exceeded the 

initial H–1B visas available each year; 

for example, for Fiscal Year 2004, about 

341,000 attestations covering 652,000 

job openings were certified even though 

only 65,000 initial H–1B visas were 

available that year.) This includes 

approximately 385 H–1B1 LCAs filed 

with ETA during FY 2004. Some 

employers will file multiple attestations 

in a year. We do not inquire about the 

size of employers filing labor 

attestations; however, the number of 

small entities that file attestations in the 

upcoming year will be less than the 

expected total of 341,000 applications 

and significantly below the potential 

universe of small businesses to which 

the program is available. Because 

applications come from employers in all 

industry segments, we consider all 

small businesses as the appropriate 

universe for comparison purposes. 

According to information provided on 

the Small Business Administration, 

Office of Advocacy Web site at http:// 

sba.gov/advo/, small firms with less 

than 500 employees represent 99.7 

percent, or 23,628,000, of the 

approximately 23,700,000 businesses in 

the United States. Thus in comparison 

to the universe of all small businesses, 

the expected 341,000 applications 

represent approximately 1.44% of all 

small businesses. The Department of 

Labor asserts a small business pool of 

less than 1.44% does not represent a 

substantial proportion of small entities. 

In any case, the Department of Labor 

does not believe this final rule will have 

a significant economic impact on 

employers, large or small, using the H–

1B and H–1B1 programs. This final rule 

does not alter the required forms or 

attestations for labor condition 

applications, but rather requires allelectronic filing of LCAs (except in 

limited circumstances). The final rule 

will alter the filing mechanism for less 

than 10 percent of the LCAs filed in FY 

2004, namely those filed by means other 

than electronic filing. While employers 

previously filing by facsimile or U.S. 

Mail will have to change to electronic 

filing, they will be moving to a more 

72560 Federal Register / Vol. 70, No. 232 / Monday, December 5, 2005 / Rules and Regulations 

efficient and rapid processing 

procedure. 

Unfunded Mandates Reform Act of 

1995: This final rule will not result in 

the expenditure by state, local, and 

tribal governments, in the aggregate, or 

by the private sector, of $100 million or 

more in any one year, and it will not 

significantly or uniquely affect small 

governments. Therefore, no actions are 

deemed necessary under the provisions 

of the Unfunded Mandates Reform Act 

of 1995. 

Small Business Regulatory 

Enforcement Fairness Act of 1996: This 

final rule is not a major rule as defined 

by section 804 of the Small Business 

Regulatory Enforcement Act of 1996 

(SBREFA). The standards for 

determining whether a rule is a major 

rule as defined by section 804 of 

SBREFA are similar to those used to 

determine whether a rule is an 

‘‘economically significant regulatory 

action’’ within the meaning of Executive 

Order 12866. Because we certified this 

final rule is not an economically 

significant rule under Executive Order 

12866, we certify it also is not a major 

rule under SBREFA. It will not result in 

an annual effect on the economy of $100 

million or more; a major increase in 

costs or prices; or significant adverse 

effects on competition, employment, 

investment, productivity, innovation, or 

on the ability of United States-based 

companies to compete with foreignbased companies in domestic and 

export markets. 

Executive Order 13132: This final rule 

will not have substantial direct effects 

on the states, on the relationship 

between the National Government and 

the states, or on the distribution of 

power and responsibilities among the 

various levels of government. Therefore, 

in accordance with section 6 of 

Executive Order 13132, it is determined 

this rule does not have sufficient 

federalism implications to warrant the 

preparation of a federalism summary 

impact statement. 

Executive Order 12988 Civil Justice 

Reform: This rule meets the applicable 

standards set forth in sections 3(a) and 

3(b)(2) of Executive Order 12988. 

Paperwork Reduction Act: The 

collection of information under 20 CFR 

part 655, subpart H, is currently 

approved under OMB control number 

1205–0310. This final rule does not 

include a substantive or material 

modification of that collection of 

information. Forms ETA 9035 and 

9035E are not being changed by this 

final rule and both will remain in use. 

Accordingly, the Department believes 

the Paperwork Reduction Act is 

inapplicable to this final rule. 

Catalog of Federal Domestic 

Assistance Number: This program is 

listed in the Catalogue 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, Chile, 

Employment, Forest and forest 

products, Health professions, 

Immigration, Labor, Longshore work, 

Migrant labor, Penalties, Reporting 

requirements, Singapore, Students, 

Wages. 

■ Accordingly, for the reasons stated in 

the Preamble, 20 CFR part 655, subpart 

H, is amended as follows: 

PART 655—TEMPORARY 

EMPLOYMENT OF ALIENS IN THE 

UNITED STATES 

Subpart H—Labor Condition 

Applications and Requirements for 

Employers Using Nonimmigrants on 

H–1B Visas in Specialty Occupations 

and as Fashion Models, and Labor 

Attestation Requirements for 

Employers Using Nonimmigrants on 

H–1B1 Visas in Specialty Occupations 

■ 1. The authority citation for part 655 

continues to read as follows: 

Authority: Section 655.0 issued under 8 

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

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

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

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

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

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

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

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

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

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

Section 655.00 issued under 8 U.S.C. 

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

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

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

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

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

Subpart B issued under 8 U.S.C. 

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

U.S.C. 49 et seq. 

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

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

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

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

note). 

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

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

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

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

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

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

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

277, 112 Stat. 2681. 

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

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

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

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

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

29 U.S.C. 49 et seq. 

■ 2. Section 655.700 is amended by 

revising paragraph (b)(1) and, in 

paragraph (d)(1), by revising the first 

sentence, to read as follows: 

§ 655.700 What statutory provisions 

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

nonimmigrants and how do employers 

apply for an H–1B or H–1B1 visa? 

* * * * * 

(b) * * * 

(1) First, an employer shall submit to 

the Department of Labor (DOL), and 

obtain DOL certification of, a labor 

condition application (LCA). The 

requirements for obtaining a certified 

LCA are provided in this subpart. The 

electronic LCA (Form ETA 9035E) is 

available at http://www.lca.doleta.gov. 

The paper-version LCA (Form ETA 

9035) and the LCA cover pages (Form 

ETA 9035CP), which contain the full 

attestation statements incorporated by 

reference into Form ETA 9035 and Form 

ETA 9035E, may be obtained from 

http://ows.doleta.gov and from the 

Employment and Training 

Administration (ETA) National Office. 

Employers must file LCAs in the 

manner prescribed in § 655.720. 

* * * * * 

(d) Nonimmigrants on H–1B1 visas—

(1) Exclusions. The following sections 

and portions of sections in this subpart 

and in subpart I of this part do not apply 

to H–1B1 nonimmigrants but apply only 

to H–1B nonimmigrants: Sections 

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

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

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). * * * 

* * * * * 

■ 3. Section 655.705 is amended by 

revising the section heading, paragraphs 

(c) introductory text and (c)(1) to read as 

follows: 

§ 655.705 What Federal agencies are 

involved in the H–1B and H–1B1 programs, 

and what are the responsibilities of those 

agencies and of employers? 

* * * * * 

(c) Employer’s Responsibilities. This 

paragraph applies only to the H–1B 

program; employer responsibilities 

under the H–1B1 program are found at 

§ 655.700(d)(4). Each employer seeking 

an H–1B nonimmigrant in a specialty 

occupation or as a fashion model of 

distinguished merit and ability has 

several responsibilities, as described 

more fully in this subpart and subpart 

I of this part, including: 

Federal Register / Vol. 70, No. 232 / Monday, December 5, 2005 / Rules and Regulations 72561 

(1) The employer shall submit a 

completed labor condition application 

(LCA) on Form ETA 9035E or Form ETA 

9035 in the manner prescribed in 

§ 655.720. By completing and 

submitting the LCA, and by signing the 

LCA, the employer makes certain 

representations and agrees to several 

attestations regarding its 

responsibilities, including the wages, 

working conditions, and benefits to be 

provided to the H–1B nonimmigrants (8 

U.S.C. 1182(n)(1)); these attestations are 

specifically identified and incorporated 

by reference in the LCA, as well as being 

set forth in full on Form ETA 9035CP. 

The LCA contains additional 

attestations for certain H–1B-dependent 

employers and employers found to have 

willfully violated the H–1B program 

requirements; these attestations impose 

certain obligations to recruit U.S. 

workers, to offer the job to U.S. 

applicants who are equally or better 

qualified than the H–1B 

nonimmigrant(s) sought for the job, and 

to avoid the displacement of U.S. 

workers (either in the employer’s 

workforce, or in the workforce of a 

second employer with whom the H–1B 

nonimmigrant(s) is placed, where there 

are indicia of employment with a 

second employer (8 U.S.C. 

1182(n)(1)(E)–(G)). These additional 

attestations are specifically identified 

and incorporated by reference in the 

LCA, as well as being set forth in full 

on Form ETA 9035CP. If ETA certifies 

the LCA, notice of the certification will 

be sent to the employer by the same 

means the employer used to submit the 

LCA (that is, electronically where the 

Form ETA 9035E was submitted 

electronically, and by U.S. Mail where 

the Form ETA 9035 was submitted by 

U.S. Mail). The employer reaffirms its 

acceptance of all of the attestation 

obligations by submitting the LCA to the 

U.S. Citizenship and Immigration 

Services (formerly the Immigration and 

Naturalization Service or INS) in 

support of the Petition for 

Nonimmigrant Worker, Form I–129, for 

an H–1B nonimmigrant. See 8 CFR 

214.2(h)(4)(iii)(B)(2), which specifies the 

employer will comply with the terms of 

the LCA for the duration of the H–1B 

nonimmigrant’s authorized period of 

stay. 

* * * * * 

■ 4. Section 655.710 is amended by 

revising paragraph (b) to read as follows: 

§ 655.710 What is the procedure for filing 

a complaint? 

* * * * * 

(b) Complaints arising under section 

212(n)(1)(G)(i)(II) of the INA, 8 U.S.C. 

1182(n)(1)(G)(i)(II), alleging failure of 

the employer to offer employment to an 

equally or better qualified U.S. 

applicant, or an employer’s 

misrepresentation regarding such 

offer(s) of employment, may be filed 

with the Department of Justice, Civil 

Rights Division, Office of Special 

Counsel for Immigration-Related Unfair 

Employment Practices, 950 

Pennsylvania Avenue, NW., 

Washington, DC 20530, Telephone: 1–

800–255–8155 (employers), 1–800–255–

7688 (employees); Web address: http:// 

www.usdoj.gov/crt/osc. The Department 

of Justice shall investigate where 

appropriate, and take action as 

appropriate under that Department’s 

regulations and procedures. 

■ 5. Section 655.715 is amended by 

revising the definitions of Certifying 

Officer and Regional Certifying Officer, 

Immigration and Naturalization Service, 

and State Employment Security Agency 

to read as follows: 

§ 655.715 Definitions. 

* * * * * 

Certifying Officer means a Department 

of Labor official, or such official’s 

designee, who makes determinations 

about whether or not to certify labor 

condition applications. 

* * * * * 

Immigration and Naturalization 

Service (INS), now known as United 

States Citizenship and Immigration 

Services (USCIS) of the Department of 

Homeland Security, means the Federal 

entity that makes the determination 

under the INA on whether to grant visa 

petitions of employers seeking the 

admission of nonimmigrants under H–

1B visas for the purpose of employment. 

* * * * * 

State Employment Security Agency 

(SESA), now known as a State 

Workforce Agency (SWA), means the 

state agency designated under section 4 

of the Wagner-Peyser Act to cooperate 

with the Employment and Training 

Administration of the Department of 

Labor in the operation of the national 

public workforce system. 

* * * * * 

■ 6. Section 655.720 is revised to read 

as follows: 

§ 655.720 Where are labor condition 

applications (LCAs) to be filed and 

processed? 

(a) Employers must file all LCAs 

regarding H–1B and H–1B1 

nonimmigrants through the electronic 

submission procedure identified in 

paragraph (b) of this section except as 

provided in the next sentence. If a 

physical disability or lack of access to 

the Internet prevents an employer from 

using the electronic filing system, an 

LCA may be filed by U.S. Mail in 

accordance with paragraphs (c) and (d) 

of this section. Requirements for 

signing, providing public access to, and 

use of certified LCAs are identified in 

§ 655.730(c). If the LCA is certified by 

DOL, notice of the certification will be 

sent to the employer by the same means 

that the employer used to submit the 

LCA, that is, electronically where the 

Form ETA 9035E was submitted 

electronically, and by U.S. Mail where 

the Form ETA 9035 was submitted by 

U.S. Mail. 

(b) Electronic submission. Employers 

must file the electronic LCA, Form ETA 

9035E, through the Department of 

Labor’s Web site at http:// 

www.lca.doleta.gov. The employer must 

follow instructions for electronic 

submission posted on the Web site. In 

the event ETA implements the 

Government Paperwork Elimination Act 

(44 U.S.C.A. 3504 n.) and/or the 

Electronic Records and Signatures in 

Global and National Commerce Act (E–

SIGN) (15 U.S.C. 7001–7006) for the 

submission and certification of the Form 

ETA 9035E, instructions will be 

provided (by public notice(s) and by 

instructions on the Department’s Web 

site) to employers as to how the 

requirements of these statutes will be 

met in the Form ETA 9035E procedures. 

(c) Approval to file LCAs by U.S. Mail. 

(1) Employers with physical disabilities 

or lacking Internet access and wishing 

to file LCAs by U.S. Mail may submit a 

written request to the Chief, Division of 

Foreign Labor Certification in 

accordance with paragraphs (c)(2) 

through (c)(4) of this section. The ETA 

shall identify the address to which such 

written request shall be mailed in a 

Notice in the Federal Register and on 

the Department’s Web site at http:// 

www.lca.doleta.gov. 

(2) The written request must establish 

the employer’s need to file by U.S. Mail, 

including providing an explanation of 

how physical disability or lack of access 

to the Internet prevents the employer 

from using the electronic filing system. 

No particular form or format is required 

for this request. 

(3) ETA will review the submitted 

justification, and may require the 

employer to submit supporting 

documentation. In the case of employers 

asserting a lack of Internet access, 

supporting documentation could, for 

example, consist of documentation that 

the Internet cannot be accessed from the 

employer’s worksite or physical location 

(for example because no Internet service 

provider serves the site), and there is no 

publicly available Internet access, at 

public libraries or elsewhere, within a 

72562 Federal Register / Vol. 70, No. 232 / Monday, December 5, 2005 / Rules and Regulations 

reasonable distance of the employer. In 

the case of employers with physical 

disabilities supporting documentation 

could, for example, consist of 

physicians’ statements or invoices for 

medical devices or aids relevant to the 

employer’s disability. 

(4) ETA may approve or deny 

employers’ requests to submit LCAs by 

U.S. Mail. Approvals shall be valid for 

1 year from the date of approval. 

(d) U.S. Mail. If an employer has a 

valid approval to file by U.S. Mail in 

accordance with paragraph (c) of this 

section, the employer may use Form 

ETA 9035 and send it by U.S. Mail to 

ETA. ETA shall publish a Notice in the 

Federal Register identifying the 

address, and any future address 

changes, to which paper LCAs must be 

mailed, and shall also post these 

addresses on the DOL Internet Web site 

at http://www.lca.doleta.gov. When 

Form ETA 9035 is submitted by U.S. 

Mail, the form must bear the original 

signature of the employer (or that of the 

employer’s authorized agent or 

representative) at the time it is 

submitted to ETA. 

(e) The ETA National Office is 

responsible for policy questions and 

other issues regarding LCAs. Prevailing 

wage challenges are handled in 

accordance with the procedures 

identified in § 655.731(a)(2). 

§ 655.721 [Removed and Reserved] 

■ 7. Section 655.721 is removed and 

reserved. 

■ 8. Section 655.730 is amended by 

revising paragraphs (b), (c), and (d)(5) to 

read as follows: 

§ 655.730 What is the process for filing a 

labor condition application? 

* * * * * 

(b) Where and when is an LCA to be 

submitted? An LCA shall be submitted 

by the employer to ETA in accordance 

with the procedure prescribed in 

§ 655.720 no earlier than six months 

before the beginning date of the period 

of intended employment shown on the 

LCA. It is the employer’s responsibility 

to ensure ETA receives a complete and 

accurate LCA. Incomplete or obviously 

inaccurate LCAs will not be certified by 

ETA. ETA will process all LCAs 

sequentially and will usually make a 

determination to certify or not certify an 

LCA within seven working days of the 

date ETA receives the LCA. LCAs filed 

by U.S. Mail may not be processed as 

quickly as those filed electronically. 

(c) What is to be submitted and what 

are its contents? Form ETA 9035 or ETA 

9035E. 

(1) General. The employer (or the 

employer’s authorized agent or 

representative) must submit to ETA one 

completed and dated LCA as prescribed 

in § 655.720. The electronic LCA, Form 

ETA 9035E, is found on the DOL Web 

site where the electronic submission is 

made, at http://www.lca.doleta.gov. 

Copies of the paper form, Form ETA 

9035, and cover pages Form ETA 

9035CP are available on the DOL Web 

site at http://www.ows.doleta.gov and 

from the ETA National Office, and may 

be used by employers with approval 

under § 655.720 to file by U.S. Mail 

during the approval’s validity period. 

(2) Undertaking of the Employer. In 

submitting the LCA, and by affixing the 

signature of the employer or its 

authorized agent or representative on 

Form ETA 9035E or Form ETA 9035, the 

employer (or its authorized agent or 

representative on behalf of the 

employer) attests the statements in the 

LCA are true and promises to comply 

with the labor condition statements 

(attestations) specifically identified in 

Forms ETA 9035E and ETA 9035, as 

well as set forth in full in the Form ETA 

9035CP. The labor condition statements 

(attestations) are described in detail in 

§§ 655.731 through 655.734, and the 

additional attestations for LCAs filed by 

certain H–1B-dependent employers and 

employers found to have willfully 

violated the H–1B program 

requirements are described in 

§§ 655.736 through 655.739. 

(3) Signed Originals, Public Access, 

and Use of Certified LCAs. In 

accordance with § 655.760(a) and (a)(1), 

the employer must maintain in its files 

and make available for public 

examination the LCA as submitted to 

ETA and as certified by ETA. When 

Form ETA 9035E is submitted 

electronically, a signed original is 

created by the employer (or by the 

employer’s authorized agent or 

representative) printing out and signing 

the form immediately upon certification 

by ETA. When Form ETA 9035 is 

submitted by U.S. Mail as permitted by 

§ 655.720(a), the form must bear the 

original signature of the employer (or of 

the employer’s authorized agent or 

representative) when submitted to ETA. 

For H–1B visas only, the employer must 

submit a copy of the signed, certified 

Form ETA 9035 or ETA 9035E to the 

U.S. Citizenship and Immigration 

Services (USCIS, formerly INS) in 

support of the Form I–129 petition, 

thereby reaffirming the employer’s 

acceptance of all of the attestation 

obligations in accordance with 8 CFR 

214.2(h)(4)(iii)(B)(2). 

(4) Contents of LCA. Each LCA shall 

identify the occupational classification 

for which the LCA is being submitted 

and shall state: 

(i) The occupation, by Dictionary of 

Occupational Titles (DOT) Three-Digit 

Occupational Groups code and by the 

employer’s own title for the job; 

(ii) The number of nonimmigrants 

sought; 

(iii) The gross wage rate to be paid to 

each nonimmigrant, expressed on an 

hourly, weekly, biweekly, monthly, or 

annual basis; 

(iv) The starting and ending dates of 

the nonimmigrants’ employment; 

(v) The place(s) of intended 

employment; 

(vi) The prevailing wage for the 

occupation in the area of intended 

employment and the specific source 

(e.g., name of published survey) relied 

upon by the employer to determine the 

wage. If the wage is obtained from a 

SESA, now known as a State Workforce 

Agency (SWA), the appropriate box 

must be checked and the wage must be 

stated; the source for a wage obtained 

from a source other than a SWA must 

be identified along with the wage; and 

(vii) For applications filed regarding 

H–1B nonimmigrants only (and not 

applications regarding H–1B1 

nonimmigrants), the employer’s status 

as to whether or not the employer is H–

1B-dependent and/or a willful violator, 

and, if the employer is H–1B-dependent 

and/or a willful violator, whether the 

employer will use the application only 

in support of petitions for exempt H–1B 

nonimmigrants. 

(5) Multiple positions and/or places of 

employment. The employer shall file a 

separate LCA for each occupation in 

which the employer intends to employ 

one or more nonimmigrants, but the 

LCA may cover more than one intended 

position (employment opportunity) 

within that occupation. All intended 

places of employment shall be 

identified on the LCA; the employer 

may file one or more additional LCAs to 

identify additional places of 

employment. Separate LCAs must be 

filed for H–1B and H–1B1 

nonimmigrants. 

(6) Full-time and part-time jobs. The 

position(s) covered by the LCA may be 

either full-time or part-time; full-time 

and part-time positions can not be 

combined on a single LCA. 

(d) What attestations does the LCA 

contain? * * * 

* * * * * 

(5) For applications filed regarding H–

1B nonimmigrants only (and not 

regarding H–1B1 nonimmigrants), the 

employer has determined its status 

concerning H–1B-dependency and/or 

willful violator (as described in 

§ 655.736), has indicated such status, 

and if either such status is applicable to 

Federal Register / Vol. 70, No. 232 / Monday, December 5, 2005 / Rules and Regulations 72563 

the employer, has indicated whether the 

LCA will be used only for exempt H–1B 

nonimmigrant(s), as described in 

§ 655.737. 

* * * * * 

§ 655.734 [Amended] 

■ 9. Section 655.734 is amended in 

paragraph (a)(1)(ii) by removing the 

phrase ‘‘Complaints alleging failure to 

offer employment to an equally or better 

qualified U.S. worker, or an employer’s 

misrepresentation regarding such 

offer(s) of employment, may be filed 

with the Department of Justice, 10th 

Street and Constitution Avenue, NW., 

Washington, DC 20530’’ and adding in 

lieu thereof the phrase ‘‘Complaints 

alleging failure to offer employment to 

an equally or better qualified U.S. 

applicant or an employer’s 

misrepresentation regarding such offers 

of employment may be filed with the 

Department of Justice, Civil Rights 

Division, Office of Special Counsel for 

Immigration-Related Unfair 

Employment Practices, 950 

Pennsylvania Avenue, NW., 

Washington, DC 20530, Telephone: 1 

(800) 255–8155 (employers), 1 (800) 

255–7688 (employees); Web address: 

http://www.usdoj.gov/crt/osc.’’

■ 10. Section 655.736 is amended in 

paragraph (g)(1) by removing the phrase 

‘‘paragraph (2)(g) of this section’’ where 

it appears and adding in lieu thereof the 

phrase ‘‘paragraph (g)(2) of this section’’

and by revising paragraphs (c) 

introductory text, (g)(2), and (g)(4) to 

read as follows: 

§ 655.736 What are H–1B-dependent 

employers and willful violators? 

* * * * * 

(c) Which employers are required to 

make determinations of H–1Bdependency status? Every employer that 

intends to file an LCA regarding H–1B 

nonimmigrants or to file H–1B 

petition(s) or request(s) for extension(s) 

of H–1B status from January 19, 2001 

through September 30, 2003, and after 

March 7, 2005, is required to determine 

whether it is an H–1B-dependent 

employer or a willful violator which, 

except as provided in § 655.737, will be 

subject to the additional obligations for 

H–1B-dependent employers (see 

paragraph (g) of this section). No H–1Bdependent employer or willful violator 

may use an LCA filed before January 19, 

2001, and during the period of October 

1, 2003 through March 7, 2005, to 

support a new H–1B petition or request 

for an extension of status. Furthermore, 

on all H–1B LCAs filed from January 19, 

2001 through September 30, 2003, and 

on or after March 8, 2005, an employer 

will be required to attest whether it is 

an H–1B-dependent employer or willful 

violator. An employer that attests it is 

non-H–1B-dependent but does not meet 

the ‘‘snap shot’’ test set forth in 

paragraph (c)(2) of this section shall 

make and document a full calculation of 

its status. However, as explained in 

paragraphs (c)(1) and (2) of this section, 

which follow, most employers would 

not be required to make any calculations 

or to create any documentation as to the 

determination of their H–1B status. 

* * * * * 

(g) What LCAs are subject to the 

additional attestation obligations? 

* * * * * 

(2) During the period between January 

19, 2001 through September 30, 2003, 

and on or after March 8, 2005, any 

employer that is ‘‘H–1B-dependent’’

(under the standards described in 

paragraphs (a) through (e) of this 

section) or is a ‘‘willful violator’’ (under 

the standards described in paragraph (f) 

of this section) shall file a new LCA 

accurately indicating that status in order 

to be able to file petition(s) for new H–

1B nonimmigrant(s) or request(s) for 

extension(s) of status for existing H–1B 

nonimmigrant(s). An LCA filed during a 

period when the special attestation 

obligations for H–1B dependent 

employers and willful violators were 

not in effect (that is before January 19, 

2001, and from October 1, 2003 through 

March 7, 2005) may not be used by an 

H–1B dependent employer or willful 

violator to support petition(s) for new 

H–1B nonimmigrant(s) or request(s) for 

extension(s) of status for existing H–1B 

nonimmigrants. 

* * * * * 

(4) The special provisions for H–1Bdependent employers and willful 

violator employers do not apply to LCAs 

filed from October 1, 2003 through 

March 7, 2005, or before January 19, 

2001. However, all LCAs filed before 

October 1, 2003, and containing the 

additional attestation obligations 

described in this section and §§ 655.737 

through 655.739, will remain in effect 

with regard to those obligations, for so 

long as any H–1B nonimmigrant(s) 

employed pursuant to the LCA(s) 

remain employed by the employer. 

§ 655.740 [Amended] 

■ 11. Section 655.740 is amended in 

paragraphs (a) introductory text and 

(a)(1) by removing the phrase ‘‘regional 

Certifying Officer’’ where it appears and 

adding in lieu thereof the phrase 

‘‘Certifying Officer,’’ and in paragraph 

(a)(3) by removing the phrase ‘‘the 

regional office’’ and adding in lieu 

thereof ‘‘ETA.’’

■ 12. Section 655.750 is amended by 

revising paragraphs (a) and (b)(2) 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 certified pursuant 

to the provisions of § 655.740 is valid 

for the period of employment indicated 

on Form ETA 9035E or ETA 9035 by the 

authorized DOL official. The validity 

period of a labor condition application 

will not begin before the application is 

certified and the period of authorized 

employment shall not exceed three 

years. However, in the event 

employment pursuant to section 214(n) 

of the INA (formerly section 214(m), 

addressing increased portability of H–

1B status) commences prior to 

certification of the labor condition 

application, the attestation requirements 

of the subsequently certified application 

shall apply back to the first date of 

employment. Where the labor condition 

application contains multiple periods of 

intended employment, the validity 

period shall extend to the latest date 

indicated or three years, whichever 

comes first. 

(b) Withdrawal of certified labor 

condition applications. 

* * * * * 

(2) Requests for withdrawals shall be 

in writing and shall be sent to ETA, 

Division of Foreign Labor Certification. 

ETA shall publish a Notice in the 

Federal Register identifying the 

address, and any future address 

changes, to which requests for 

withdrawals shall be mailed, and shall 

also post these addresses on the DOL 

Web site at http://www.lca.doleta.gov. 

* * * * * 

■ 13. Section 655.760 is amended by 

revising paragraph (a)(1) to read as 

follows: 

§ 655.760 What records are to be made 

available to the public, and what records 

are to be retained? 

(a) Public examination. * * * 

(1) A copy of the certified labor 

condition application (Form ETA 9035E 

or Form ETA 9035) and cover pages 

(Form ETA 9035CP). If the Form ETA 

9035E is submitted electronically, a 

printout of the certified application 

shall be signed by the employer and 

maintained in its files and included in 

the public examination file. 

* * * * * 

72564 Federal Register / Vol. 70, No. 232 / Monday, December 5, 2005 / Rules and Regulations 

Signed in Washington, DC this 29th day of 

November, 2005. 

Emily Stover DeRocco, 

Assistant Secretary, , Employment and 

Training Administration. 

[FR Doc. 05–23616 Filed 12–2–05; 8:45 am] 

BILLING CODE 4510–30–P