20 CFR 655.1113 - Element III

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§ 655.1113 Element III - What does “facility wage rate” mean?

(a) The third attestation element requires that the facility employing or seeking to employ the alien must attest that “the alien employed by the facility will be paid the wage rate for registered nurses similarly employed by the facility.”

(b) The facility must pay the higher of the wage required in this section (i.e. facility wage), or the wage required in § 655.1112 (i.e., prevailing wage).

(c) Wage obligations for H-1C nurses in nonproductive status -

(1) Circumstances where wages must be paid. If the H-1C nurse is not performing work and is in a nonproductive status due to a decision by the facility (e.g., because of lack of assigned work), because the nurse has not yet received a license to work as a registered nurse, or any other reason except as specified in paragraph (c)(2) of this section, the facility is required to pay the salaried H-1C nurse the full amount of the weekly salary, or to pay the hourly-wage H-1C nurse for a full-time week (40 hours or such other number of hours as the facility can demonstrate to be full-time employment) at the applicable wage rate.

(2) Circumstances where wages need not be paid. If an H-1C nurse experiences a period of nonproductive status due to conditions unrelated to employment which take the nurse away from his/her duties at his/her voluntary request and convenience (e.g., touring the U.S., caring for ill relative) or render the nonimmigrant unable to work (e.g., maternity leave, automobile accident which temporarily incapacitates the nonimmigrant), then the facility is not obligated to pay the required wage rate during that period, provided that such period is not subject to payment under the facility's benefit plan. Payment need not be made if there has been a bona fide termination of the employment relationship, as demonstrated by notification to USCIS that the employment relationship has been terminated and the petition should be canceled.

(d) Documentation. The facility must maintain documentation substantiating compliance with this attestation element. The public access file shall contain the facility pay schedule for nurses or a description of the factors taken into consideration by the facility in making compensation decisions for nurses, if either of these documents exists. Categories of nursing positions not covered by the public access file documentation shall not be covered by the Attestation, and, therefore, such positions shall not be filled or held by H-1C nurses. The facility must maintain the payroll records, as required under the Fair Labor Standards Act at 29 CFR part 516, and make such records available to the Administrator in the event of an enforcement action pursuant to subpart M of this part.

This is a list of United States Code sections, Statutes at Large, Public Laws, and Presidential Documents, which provide rulemaking authority for this CFR Part.

This list is taken from the Parallel Table of Authorities and Rules provided by GPO [Government Printing Office].

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United States Code
Statutes at Large

Title 20 published on 2015-04-01

The following are ALL rules, proposed rules, and notices (chronologically) published in the Federal Register relating to 20 CFR Part 655 after this date.

  • 2015-10-16; vol. 80 # 200 - Friday, October 16, 2015
    1. 80 FR 62958 - Temporary Agricultural Employment of H-2A Foreign Workers in the Herding or Production of Livestock on the Range in the United States
      GPO FDSys XML | Text
      DEPARTMENT OF LABOR, Employment and Training Administration
      Final rule.
      Effective Date: This rule will be effective on November 16, 2015.
      20 CFR Part 655