What requirements are imposed in the filing of an attestation?
(a) Who may file Attestations?
(1) Any hospital which meets the definition of facility in §§ 655.1102 and 655.1111 may file an Attestation.
(2) ETA shall determine the hospital's eligibility as a facility through a review of this attestation element on the first Attestation filed by the hospital. ETA's determination on this point is subject to a hearing before the BALCA upon the request of any interested party. The BALCA proceeding shall be limited to the point.
(3) Upon the hospital's filing of a second or subsequent Attestation, its eligibility as a facility shall be controlled by the determination made on this point in the ETA review (and BALCA proceeding, if any) of the hospital's first Attestation.
(b) Where and when should attestations be submitted?
(1) Attestations shall be submitted, by U.S. mail or private carrier, to ETA at the following address: U.S. Department of Labor, Employment and Training Administration, Office of Foreign Labor Certification, Chicago National Processing Center, 536 South Clark Street, Chicago, IL 60605-1509.
(2) Attestations shall be reviewed and accepted for filing or rejected by ETA within 30 calendar days of the date they are received by ETA. Therefore, it is recommended that attestations be submitted to ETA at least 35 calendar days prior to the planned date for filing an H-1C visa petition with USCIS.
(c) What shall be submitted?
(1) Form ETA 9081 and required supporting documentation, as described in paragraphs (c)(1)(i) through (iv) of this section.
(i) A completed and dated original Form ETA 9081, containing the required attestation elements and the original signature of the chief executive officer of the facility, shall be submitted, along with one copy of the completed, signed, and dated Form ETA 9081. Copies of the form and instructions are available at the address listed in paragraph (b) of this section.
(ii) If the Attestation is the first filed by the hospital, it shall be accompanied by copies of pages from the hospital's Form HCFA 2552 filed with the Department of Health and Human Services (pursuant to title XVIII of the Social Security Act) for its 1994 cost reporting period, showing the number of its acute care beds and the percentages of Medicaid and Medicare reimbursed acute care inpatient days (i.e., Form HCFA-2552-92, Worksheet S-3, Part I; Worksheet S, Parts I and II).
(iii) If the facility attests that it will take one or more timely and significant steps other than the steps identified on Form ETA 9081, then the facility must submit (in duplicate) an explanation of the proposed step(s) and an explanation of how the proposed step(s) is/are of comparable significance to those set forth on the Form and in § 655.1114. (See § 655.1114(b)(2)(v).)
(iv) If the facility attests that taking more than one timely and significant step is unreasonable, then the facility must submit (in duplicate) an explanation of this attestation. (See § 655.1114(c).)
(2) Filing fee of $250 per Attestation. Payment must be in the form of a check or money order, payable to the “U.S. Department of Labor.” Remittances must be drawn on a bank or other financial institution located in the U.S. and be payable in U.S. currency.
(3) Copies of H-1C petitions and USCIS approval notices. After ETA has approved the attestation used by the facility to support any H-1C petition, the facility must send copies of each H-1C petition and USCIS approval notice on such petition to Employment and Training Administration, Administrator, Office of Foreign Labor Certification, 200 Constitution Avenue, NW., Room C-4312, Washington, DC 20210.
(d) Attestation elements. The attestation elements referenced in paragraph (c)(1) of this section are mandated by section 212(m)(2)(A) of the INA (8 U.S.C. 1182(m)(2)(A) ). Section 212(m)(2)(A) requires a prospective employer of H-1C nurses to attest to the following:
(1) That it qualifies as a facility (See § 655.1111 );
(2) That employment of H-1C nurses will not adversely affect the wages or working conditions of similarly employed nurses (See § 655.1112 );
(3) That the facility will pay the H-1C nurse the facility wage rate (See § 655.1113 );
(4) That the facility has taken, and is taking, timely and significant steps to recruit and retain U.S. nurses (See § 655.1114 );
(5) That there is not a strike or lockout at the facility, that the employment of H-1C nurses is not intended or designed to influence an election for a bargaining representative for RNs at the facility, and that the facility did not lay off and will not lay off a registered nurse employed by the facility 90 days before and after the date of filing a visa petition (See § 655.1115 );
(6) That the facility will notify its workers and give a copy of the Attestation to every nurse employed at the facility (See § 655.1116 );
(7) That no more than 33 percent of nurses employed by the facility will be H-1C nonimmigrants (See § 655.1117 ); and
(8) That the facility will not authorize H-1C nonimmigrants to work at a worksite not under its control, and will not transfer an H-1C nonimmigrant from one worksite to another (See § 655.1118 ).
[75 FR 10404, Mar. 5, 2010]
Title 20 published on 2012-04-01
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