DOL Advises on the Attestation of H-1A Nurses

Dear Mr. Shusterman:

This is in response to your letter of January 29, requesting clarification of Section 656.310(p). This requires each facility to comply with the terms and conditions of its attestation, even if the attestation is suspended, invalidated, or expired, as long as any H-1A nurse is at the facility, unless the attestation is superseded by a subsequent attestation accepted for filing by the Department of Labor.

A facility with an expired attestation is responsible for all of the terms and conditions contained in the regulations for each of the attestation elements on the ETA Form 9029 as long as it employs any H-1A nonimmigrant nurses. An attestation expires 12 months after the attestation is accepted for filing. An expired attestation cannot be used to petition INS for additional H-1As or request extensions of stay for any employed H- 1As.

In your letter, you list a number of questions which will now be addressed:

First, must a facility obtain and comply with a new SESA prevailing wage determination annually? Yes, according to the instructions for the Form ETA 9029, if the nurses at the facility are not unionized, the facility must update the prevailing wage every year in which it employs H-1A nurses. Under an expired attestation, the facility must pay each registered nurse at least the prevailing wage rate for as long as it employs any H-1A nurses. A facility which does not pay each employed nurse at least the prevailing wage rate as determined by the SESA for whatever reason, is not in compliance with the regulatory requirements and is subject to enforcement penalties.

Secondly, may a facility which has laid off staff nurses within the previous year continue to employ H-1A nurses? Yes, if the facility has an expired attestation under which it employed H-1A nurses, the facility may continue to employ H-1A nurses already employed by the facility. A facility which has laid off registered nurses may not submit a new health care facility attestation in order to employ new H-1A nurses or seek extensions for current H- 1A nurses until it is able to attest again to Section 655.301(d)(i) of the regulations. Section 655.301(d)(i) requires each facility to attest that it has not laid off any staff nurses during the 12 month period prior to submitting the attestation. A facility which lays off a registered nurse other than a staff nurse still meets the "no layoff" requirement. However, the facility cannot replace the laid off nurse with an H-1A nurse for a period of one year after the date of the layoff.

Third, how may a facility who cannot renew its attestation because it has only a 6 percent nurse vacancy rate continue to comply with the terms and conditions of its attestation? Section 655.310(d)(2)(i)(A) of the regulations requires the facility to attest to a current nurse vacancy rate of seven percent or more. It does not require the facility to maintain the vacancy rate. Presumably, upon employment of H-1A nurses, the vacancy rate would necessarily decrease.

If a facility finds that it cannot attest to the four specific indicators of substantial disruption listed on the Form ETA 9029, under Item 8.a.ii.; the facility may attest to an alternate indicator of substantial disruption by checking the last box labeled "other" under Item 8.a.ii. on the Form ETA 9029. The facility must provide a written explanation sufficient to provide a clear showing of the facility's inability to deliver specific health care services to its patients due to the shortage of available nurses. Section 655.310(2)(ii) of the regulations described the requirements a facility attesting to an "other" indicator of substantial disruption must meet. The Department of Labor will review the facility's statement for an "other" indicator of substantial disruption to ensure that it complies with the regulatory requirements.

On January 6, 1994, the final rule for the H-1A program was published in the Federal Register. For your convenience, I have enclosed a copy of that rule and the revised January 1994 Form ETA 9029. The final rule makes no changes which affect any of the questions addressed above.

I trust this letter answers all of your questions concerning Section 656.310(p) of the H-1A regulations.

Flora T. Richardson

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