Labor Certification Process for Temporary Employment in the Commonwealth of the Northern Mariana Islands (CW-1 Workers)
| Published date | 01 April 2019 |
| Citation | 84 FR 12380 |
| Record Number | 2019-05937 |
| Section | Rules and Regulations |
| Court | Employment And Training Administration |
Federal Register, Volume 84 Issue 62 (Monday, April 1, 2019)
[Federal Register Volume 84, Number 62 (Monday, April 1, 2019)]
[Rules and Regulations]
[Pages 12380-12448]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-05937]
[[Page 12379]]
Vol. 84
Monday,
No. 62
April 1, 2019
Part III Department of Labor----------------------------------------------------------------------- Employment and Training Administration-----------------------------------------------------------------------20 CFR Part 655 Labor Certification Process for Temporary Employment in the
Commonwealth of the Northern Mariana Islands (CW-1 Workers); Interim
Final Rule
Federal Register / Vol. 84, No. 62 / Monday, April 1, 2019 / Rules
and Regulations
[[Page 12380]]
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DEPARTMENT OF LABOR
Employment and Training Administration
20 CFR Part 655
[DOL Docket No. ETA-2019-0001]
RIN 1205-AB92
Labor Certification Process for Temporary Employment in the
Commonwealth of the Northern Mariana Islands (CW-1 Workers)
AGENCY: Employment and Training Administration, Department of Labor.
ACTION: Interim final rule; request for comments.
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SUMMARY: The Department of Labor (Department or DOL) is issuing new
regulations governing the certification of temporary employment
opportunities to be filled by nonimmigrant workers in the Commonwealth
of the Northern Mariana Islands (CNMI) and the obligations applicable
to employers of such workers under the CNMI-Only Transitional Worker
visa program (CW-1). This interim final rule (IFR), implementing
provisions of the Northern Mariana Islands U.S. Workforce Act of 2018
(Workforce Act), establishes the process by which a CNMI employer will
obtain a prevailing wage determination (PWD) and temporary labor
certification (TLC) from DOL for use in petitioning the Department of
Homeland Security (DHS) to employ a nonimmigrant worker in CW-1 status.
Although the CW-1 visa classification predates the Workforce Act,
classification as a CW-1 nonimmigrant does not currently require a
labor certification. The Workforce Act institutes a labor certification
requirement as a prerequisite for approval of a CW-1 petition by DHS
and charges the Department with promulgating an IFR to administer this
new labor certification requirement. We are also issuing regulations to
provide for increased worker protections for both United States (U.S.)
and foreign workers to ensure no U.S. worker is placed at a competitive
disadvantage compared to a foreign worker or is displaced by a foreign
worker.
DATES: This IFR is effective April 4, 2019, at 12:00 a.m. Eastern Time
(ET). Interested parties are invited to submit written comments on this
IFR on or before May 31, 2019.
ADDRESSES: You may submit comments, identified by the Regulatory
Information Number (RIN) 1205-AB92, by any one of the following
methods:
Electronic Comments: Comments may be sent via http://www.regulations.gov, a Federal E-Government website that allows the
public to find, review, and submit comments on documents that agencies
have published in the Federal Register and that are open for comment.
Simply type in ``DOL CNMI IFR'' (in quotes) in the Comment or
Submission search box, click Go, and follow the instructions for
submitting comments.
Mail: Address written submissions to (including disk and CD-ROM
submissions) to Adele Gagliardi, Administrator, Office of Policy
Development and Research, Employment and Training Administration, U.S.
Department of Labor, 200 Constitution Avenue NW, Room N-5641,
Washington, DC 20210.
Instructions: Please submit only one copy of your comments by only
one method. All submissions must include the agency name and the RIN
1205-AB92. Please be advised that comments received will become a
matter of public record and will be posted without change to http://www.regulations.gov, including any personal information provided.
Comments that are mailed must be received by the date indicated for
consideration.
Docket: For access to the docket to read documentation prepared in
support of this rule or comments, go to the Federal e-Rulemaking Portal
at http://www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: Thomas M. Dowd, Deputy Assistant
Secretary, Employment and Training Administration, Department of Labor,
Box #12-200, 200 Constitution Ave. NW, Washington, DC 20210, telephone
(202) 513-7350 (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
1-877-889-5627 (TTY/TDD).
SUPPLEMENTARY INFORMATION:
I. Executive Summary
The Workforce Act, Public Law 115-218 (July 24, 2018), provides the
Secretary of Homeland Security with authority to administer and enforce
a system of allocating and determining the terms and conditions of
visas to be issued to certain nonimmigrant workers performing services
or labor for an employer in the CNMI. Department of Homeland Security
(DHS) regulations establish the CW-1 visa classification to provide for
an orderly transition from the CNMI permit system to the U.S.
immigration system for a foreign national who is otherwise ineligible
for another classification under the Immigration and Nationality Act
(INA). In accordance with the Workforce Act, DHS will update
regulations to reflect the statutory requirement that a CW-1 petition
for temporary employment in the CNMI be accompanied by an approved TLC
from DOL. A TLC granted by DOL confirms that there are not sufficient
U.S. workers in the CNMI who are able, willing, qualified, and
available to fill the petitioning CW-1 employer's job opportunity. The
TLC also confirms that a foreign worker's employment in the job
opportunity will not adversely affect the wages or working conditions
of similarly employed U.S. workers.
As explained more fully in the preamble, the IFR establishes the
process by which employers obtain a TLC from DOL for use in petitioning
DHS to employ a nonimmigrant worker in CW-1 status, which involves four
basic steps. First, the employer must request and obtain a PWD from
DOL's Office of Foreign Labor Certification (OFLC) before filing a CW-1
Application for Temporary Employment Certification. To make this
request, the employer will submit a completed Application for
Prevailing Wage Determination (Form ETA-9141C) with OFLC's National
Prevailing Wage Center (NPWC) containing information about the job
opportunity in which the nonimmigrant workers will be employed. Based
on a review of the information provided by the employer on the Form
ETA-9141C, the NPWC will issue a PWD, indicate the source and validity
period for its use, and return the Form ETA-9141C with its endorsement
to the employer.
Second, the employer must file a completed CW-1 Application for
Temporary Employment Certification (Form ETA-9142C and appropriate
appendices) with the OFLC National Processing Center (NPC) no more than
120 calendar days before the date of need. Consistent with the
Workforce Act, the employer seeking to extend the employment of a CW-1
worker may file a CW-1 Application for Temporary Employment
Certification no more than 180 calendar days before the date on which
the CW-1 status expires. The NPC Certifying Officer (CO) will review
the employer's application for compliance with all applicable program
requirements and issue either a Notice of Deficiency (NOD) or Notice of
Acceptance (NOA). Where deficiencies in the application are discovered,
the NOD will direct the employer that it must respond within 10
business days to submit a modified application
[[Page 12381]]
correcting the deficiencies or the CO will deny the application.
Third, where all program requirements are met, the employer will
receive a NOA from the CO directing the recruitment of U.S. workers for
the job opportunity and requesting a written report of the employer's
recruitment efforts. To encourage the hiring of U.S. workers for
employment in the CNMI, the employer will be required to advertise the
job opportunity on the CNMI Department of Labor's job listing system;
contact its former U.S. workers and solicit their return to the job;
post a copy of the CW-1 Application for Temporary Employment
Certification at the place(s) of employment in which the work will be
performed by the CW-1 workers; and conduct any other recruitment
activities (e.g., contacting community-based organizations or trade
unions) required by the CO. The recruitment period will last
approximately 21 calendar days and all employer-conducted recruitment
must be completed before the written recruitment report can be
prepared, signed, and submitted to the NPC for review.
And finally, upon review of the recruitment report, the CO will
make a determination either to certify or to deny the CW-1 Application
for Temporary Employment Certification. The CO will certify the
application only where the employer has met all regulatory
requirements. If the employer has met all requirements, the CO will
send a Final Determination notice and copy of the certified CW-1
Application for Temporary Employment Certification to the employer and
a copy, if applicable, to the employer's agent or attorney. The
employer will use the Final Determination notice, as well as any other
required documentation, to support the filing of a CW-1 petition with
U.S. Citizenship and Immigration Services (USCIS).
As a condition of receiving a TLC, the IFR provides a number of
worker protections to ensure U.S. workers are not placed at a
competitive disadvantage compared to a CW-1 worker, such as requiring a
minimum number of hours per week for full-time employment; requiring
that U.S. workers in corresponding employment receive the same wages
and benefits as the CW-1 workers; and requiring the payment of wages by
employers to be finally and unconditionally ``free and clear'' and no
less frequent than every 2 weeks. It also requires that employers
guarantee employment for a total number of work hours equal to at least
three-fourths of the workdays of the total period of employment for
both CW-1 workers and workers in corresponding employment.
The IFR requires employers to pay visa and related fees of CW-1
workers, and it requires employers to pay the inbound transportation
costs--including subsistence costs incurred in transit--of workers who
complete 50 percent of the job order period and the outbound
transportation costs--including subsistence costs incurred in transit--
of employees who complete the entire job order period. To protect U.S.
workers in their employment from displacement by a CW-1 worker, this
IFR prohibits the employer from laying off any similarly employed U.S.
worker in the occupation beginning 270 calendar days before the date of
need through the end of the period of employment certified by DOL. It
also prohibits employers from retaliating against employees for
exercising rights under the CW-1 program and protects workers from
discriminatory hiring practices.
Finally, the IFR contains a number of provisions that will lead to
increased transparency and enhanced program integrity. It requires
employers to provide workers with earnings statements on or before each
payday, with hours worked and deductions clearly specified; requires
employers to provide workers with copies of the work contract in a
language understood by the worker; and requires DOL to maintain an
electronic file accessible to the general public with information on
all employers applying for TLC to employ CW-1 workers. Additionally,
the IFR requires employers to retain all documents and records
establishing compliance with the regulations for a period of 3 years
after the CW-1 Application for Temporary Employment Certification is
adjudicated or from the date the CO receives a letter of withdrawal.
The employer must make these documents and records available to the
DOL, DHS or to any Federal Government Official performing an
investigation, inspection, audit, or other law enforcement activity. It
also establishes a sanctions and penalties regime for employers that
violate program requirements, such as more intensive or assisted
recruitment requirements, revocation of a certified CW-1 Application
for Temporary Employment Certification, or debarment from filing any
labor certification application or labor condition application with the
Department for up to 5 years. The debarment process for the CW-1
program will provide for notice, an opportunity for rebuttal, and a
right to appeal the Department's determination. CW-1 debarment, once it
takes effect however, will automatically debar an individual or entity
from other foreign labor certification programs as well. That is, an
individual or entity debarred from the CW-1 program will be
disqualified from filing any labor certification applications \1\ or
labor condition applications \2\ with DOL, including an agent or
attorney's filing of an application on the debarred entity's behalf,
for the period of time set forth in the CW-1 Notice of Debarment, Final
Determination (if rebuttal evidence is submitted), or ARB Decision (if
the debarment action is appealed).
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\1\ See 20 CFR part 655, subpart A (governing H-2B temporary
nonagricultural workers); 20 CFR part 655, subpart B (governing H-2A
temporary agricultural workers); 20 CFR part 655, subpart F
(governing the temporary employment of D-1 crewmembers on foreign
vessels to perform longshore work at U.S. ports); and 20 CFR part
656 (permanent labor certification).
\2\ See 20 CFR part 655, subpart H (governing labor condition
applications for H-1B foreign nationals entering the U.S. on a
temporary basis to work in specialty occupations or as fashion
models, H-1b1 professionals entering under the U.S.-Chile or U.S.-
Singapore Free Trade Agreements, and E-3 professionals entering
under the U.S.-Australia Free Trade Agreement).
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The Department has concluded that the procedures and requirements
outlined in this IFR will help employers obtain a reliable and
productive workforce while also providing appropriate incentives to
encourage the hiring of U.S. workers in the CNMI and protect the
integrity of the program. This IFR is considered an Executive Order
(E.O.) 13771 regulatory action. Details on the estimated costs can be
found in the rule's economic analysis. Implementing this new labor
certification process will further the Congressional intent to
incentivize the hiring of U.S. workers in the CNMI by developing and
strengthening the CNMI labor force over time; contribute to the success
of its economy and labor market by benefiting small business; and
create greater job opportunities for U.S. workers in that geographical
demarcation. The new regulations also seek to ensure that the wages of
U.S. workers are protected, in addition to extending worker protection
assurances currently afforded in other TLC programs.
II. Background
A. Legal Framework
President Donald J. Trump signed the Workforce Act into law on July
24, 2018. The purposes of the Workforce Act are to encourage the hiring
of U.S. workers in the CNMI workforce and ensure that no U.S. worker is
placed at a competitive disadvantage compared to a non-U.S. worker or
is displaced by a non-U.S. worker. The Workforce Act
[[Page 12382]]
extends the transition period described below (and thus, the CW-1 visa
program) through 2029. It also requires that a CW-1 petition for
temporary employment filed with DHS be accompanied by an approved TLC
from DOL. See Public Law 115-218, sec. 3, 48 U.S.C. 1806(a)(2) and
(d)(2). The TLC from DOL must confirm that: (1) There are not
sufficient U.S. workers in the CNMI who are able, willing, qualified,
and available at the time and place needed to perform the services or
labor involved in the petition; and (2) the employment of a
nonimmigrant worker who is the subject of a petition will not adversely
affect the wages and working conditions of similarly employed U.S.
workers. 48 U.S.C. 1806(d)(2)(A).
In order to implement the second requirement that nonimmigrant
employment will not adversely affect U.S. workers' wages and working
conditions, the Workforce Act mandates the determination of the
relevant wage rates. The first option for this determination is for DOL
to use, or make available to employers, an occupational wage survey
conducted by the Governor of the CNMI (Governor) that meets the
statistical standards established by the Department for determining
prevailing wages in the CNMI on an annual basis. 48 U.S.C.
1806(d)(2)(B). If that does not occur, then the Workforce Act requires
that the prevailing wage for a given occupation in the CNMI be the
arithmetic mean of the wages of workers similarly employed in the
territory of Guam based on the Occupational Employment Statistics (OES)
Survey conducted by the Department's Bureau of Labor Statistics (BLS).
Id. The Secretary of Labor (Secretary) has delegated the statutory
responsibilities of administering the TLC process through the ETA
Assistant Secretary to OFLC.
The CNMI is a self-governing commonwealth and unincorporated
territory of the United States. In 1976, Congress approved a Covenant
to Establish a Commonwealth of the Northern Mariana Islands in
Political Union with the United States of America (the Covenant),
Public Law 94-241, sec. 1, 90 Stat. 263 (Mar. 24, 1976) (48 U.S.C. 1801
and 1801 note). The Covenant, which entered into full effect on Nov. 4,
1986, Presidential Proclamation No. 5564, 51 FR 40399 (Nov. 3, 1986)
(48 U.S.C. 1801 note), established the terms of the political
relationship between the United States and the CNMI, granted U.S.
citizenship to eligible CNMI residents, exempted the CNMI from most
U.S. immigration laws, and gave the CNMI local control over its own
immigration system. Congress retained the authority to extend U.S.
immigration laws to the CNMI at any time.\3\ In addition, the Covenant
sought to increase the percentage of U.S. workers in the total
workforce of the CNMI, while maintaining the minimum number of workers
who are not U.S. workers to meet the changing demands of the CNMI
economy; to encourage the hiring of U.S. workers into such workforce;
and to ensure that no U.S. worker is at a competitive disadvantage for
employment compared to a worker who is not a U.S. worker, or is
displaced by a worker who is not a U.S. worker.
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\3\ See history summarized in S. Rep. No. 115-214 at 6-7 (2018),
https://www.congress.gov/115/crpt/srpt214/CRPT-115srpt214.pdf,
accompanying S.2325, Northern Mariana Islands U.S. Workforce Act.
Provisions of S. 2325 were enacted as part of the Workforce Act. See
also immigration issues and recommendations discussed, pre-Workforce
Act, in Special Representatives of the United States and the
Commonwealth of the Northern Mariana Islands, ``Report to the
President on 902 Consultations 6-25'' (Jan. 2017) (hereafter
``Report on 902 Consultations''), https://www.doi.gov/sites/doi.gov/files/uploads/902-consultations-report-january-2017.pdf.
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In 2008, Congress extended U.S. immigration laws to the CNMI
through the Consolidated Natural Resources Act of 2008 (CNRA). See
Public Law 110-229, Title VII, 122 Stat. 754, 853 (May 8, 2008) (48
U.S.C. 1806 note). Under the CNRA, which amended the Covenant, Federal
immigration laws would fully apply after a 5-year (2009-2014)
transition period. Once the Federal immigration laws were in place in
2014 without CNMI exceptions, a percentage of the workforce would
likely not meet the requirements of U.S. temporary employment visas,
and thus would be ineligible to enter or reenter the CNMI, negatively
impacting the local economy. Thus, the CNRA provided for a new
Commonwealth-Only Transitional Worker visa classification, to be
administered by DHS, with the proviso that, to incrementally reduce the
Commonwealth's dependence on foreign labor, the number of visas issued
would decrease each year, ending with the issuance of zero visas by the
end of the transition period. Congress later extended the period's end
to December 31, 2019. See Public law 110-229, sec. 702(a); S. Rep. No.
115-214 at 6-7; Report on 902 Consultations at 6-7; and Consolidated
and Further Continuing Appropriations Act, 2015, Public Law 113-235,
sec. 10, 128 Stat. 2130, 2134 (Dec. 16, 2014) (extending the transition
period to December 31, 2019). The CNRA did not stipulate the
requirement of obtaining a labor certification prior to filing a
petition for a CW-1 worker with DHS.
B. Statutory Basis for an Interim Final Rule
The Workforce Act requires the Secretary to promulgate an IFR
implementing the CW-1 TLC and its related provisions, and exempts this
rulemaking from the Administrative Procedure Act's (APA's) notice-and-
comment requirement under 5 U.S.C. 553(b). See Public Law 115-218, sec.
3(b)(2).
This exemption reflects the exigency created by the new labor
certification requirement. Under the CW-1 visa program as amended by
the Workforce Act, the Secretary must develop and implement new
standards, requirements, and procedures for employers to obtain a TLC
before a CW-1 petition can be submitted to DHS. This new TLC process--
including a procedure to obtain a PWD required to support the
employer's TLC application--must enable employers to hire a
nonimmigrant worker under the CW-1 classification with an employment
start date as early as October 1, 2019, when the new requirement takes
effect.\4\ By statute, an employer that desires to renew the employment
of a CW-1 worker may petition DHS no more than 180 calendar days before
the expiration of that worker's visa status.\5\ The earliest possible
renewal petition date for a CW-1 worker with an October 1, 2019 start
date is April 4, 2019. Accordingly, the Secretary must have a process
for employers to obtain a PWD and TLC in place by April 4, 2019. See 48
U.S.C. 1806(d)(2)(A)(i).
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\4\ The governing statute, as amended by the Workforce Act,
establishes a temporary labor certification requirement beginning
with CW-1 petitions filed with DHS with employment start dates in FY
2020. See 48 U.S.C. 1806(d)(2)(A)(i).
\5\ See 48 U.S.C. 1806(d)(3)(D), providing that an employer may
petition DHS no earlier than 180 days before the expiration of a CW-
1 visa, when the petition is for renewal of the visa.
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Because of the exigency created by the statute, the Department is
also issuing this IFR with an April 4, 2019 effective date, rather than
providing for the usual 30-day waiting period required by section
553(d) of the APA. Under the APA, an agency is authorized to make a
rule effective immediately upon a showing of good cause instead of
imposing a 30-day delay. 5 U.S.C. 553(d)(3). An agency can show good
cause for eliminating the 30-day waiting period when it demonstrates
urgent conditions the rule seeks to correct or unavoidable time
limitations. U.S. Steel Corp. v. EPA, 605 F.2d 283, 290 (7th Cir.
[[Page 12383]]
1979); United States v. Gavrilovic, 551 F.2d 1099, 1104 (8th Cir.
1977). As explained above, because Congress has required that a labor
certification process be in place to enable employers to hire CW-1
workers with start dates as early as October 1, 2019, this rulemaking
must be effective no later than April 4, 2019, so that an employer may
obtain a timely PWD. A valid PWD is required when an employer files its
CW-1 Application for Temporary Employment Certification. Only after the
employer receives a TLC from the Department may it petition USCIS for a
CW-1 visa, so the Department is making this rule effective as soon as
possible. Employers may request a PWD as early as April 4, 2019.
C. CNMI Labor Market
The CNMI has a total population of 52,263, according to the CNMI
Department of Commerce Central Statistics Division.\6\ In the years
that followed the establishment of the Covenant, the CNMI economy
became reliant on the use of temporary foreign labor. The Government
Accountability Office (GAO) found that in 2016, foreign workers made up
53 percent of those employed and filled the majority of all hospitality
and construction jobs. The GAO also found that, if all CW workers were
removed from the CNMI's labor market, the CNMI's gross domestic product
(GDP) would be reduced by between 26 and 62 percent. The GAO report
noted that the supply of workers in the unemployed domestic workforce
would be well below the CNMI's demand for foreign labor.\7\ The
estimated employment level was 29,215 workers (15,559 foreign workers
and 13,656 domestic workers) in 2016,\8\ while the number of unemployed
persons was 2,386 persons.\9\ Historically, the unemployment rate in
the CNMI has been higher than 10 percent because many unemployed
persons in the CNMI lack the skill sets and work experience required
for the jobs filled by foreign workers, even though many of those jobs
are for low-skilled workers.
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\6\ CNMI Department of Commerce, Central Statistics Division,
``CNMI Labor Force Participation Measures'' (May 2018), http://ver1.cnmicommerce.com/wp-content/uploads/2018/05/20174QLFPFD-ver.-1.1.pdf.
\7\ See Report on 902 Consultations at 6-7. See U.S. Govt.
Accountability Office, ``Commonwealth of the Northern Mariana
Islands: Implementation of Federal Minimum Wage and Immigration
Laws,'' GAO-17-437 (May 2017), https://www.gao.gov/products/GAO-17-437.
\8\ U.S. Government Accountability Office, ``Commonwealth of the
Northern Mariana Islands: Recent Economic Trends and Preliminary
Observations on Workforce Data,'' GAO-18-373T (Feb. 2018), https://www.gao.gov/products/GAO-18-373T.
\9\ U.S. Government Accountability Office, ``Commonwealth of the
Northern Mariana Islands: Implementation of Federal Minimum Wage and
Immigration Laws,'' GAO-17-437 (May 2017), https://www.gao.gov/products/GAO-17-437.
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According to the CNMI Department of Commerce Central Statistics
Division, there were an estimated 2,646 unemployed persons in the CNMI
in the 4th quarter of 2017, 53.1 percent (1,406) of whom were U.S.
citizens and 11.7 percent (310) of whom were permanent residents.\10\
The CNMI unemployment rate was 10.5 percent. The unemployment rate for
U.S. citizens was 13.5 percent, for permanent residents was 9.2
percent, and for non-U.S. citizens was 8.2 percent. The unemployment
rate was negatively associated with age: The highest rate was 26.2
percent for youth 16 to 19 years of age, while the lowest rate was 2.0
percent for persons 65 years of age and older. The unemployment rate
was also inversely related to education level: Persons with less than a
high school diploma had the highest unemployment rate at 21.3 percent,
while those with at least a master's degree had the lowest unemployment
rate at 3.7 percent. With respect to place of birth, the unemployment
rate for persons born in a U.S. State or territory was 14.3 percent,
for persons born in an Asian country was 7.3 percent, and for persons
born in the Pacific Islands was 18.9 percent.\11\
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\10\ The report included the following note regarding the
presence of unemployed non-U.S. citizens: ``Note that while there
are Not U.S. Citizens in the unemployed population, they are likely
to be more temporary, compared to U.S Citizen and Permanent
Resident, because of existing laws governing migrant workers. With
no job, Not U.S. Citizen, migrant worker will eventually leave the
CNMI.''
\11\ CNMI Department of Commerce, Central Statistics Division,
``CNMI Labor Force Participation Measures'' (May 2018), http://ver1.cnmicommerce.com/wp-content/uploads/2018/05/20174QLFPFD-ver.-1.1.pdf.
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In light of the CNMI economy's continuing dependence on foreign
labor, the CNRA's requirement to reduce and eventually eliminate CW-1
visas generated significant concern among CNMI employers. Increased
employer demand for CW-1 visas has resulted, in large part, from recent
economic expansion in the construction, casinos, and related
hospitality industry sectors. In its February 2018 report, the GAO
noted that the U.S. Department of Commerce's Bureau of Economic
Analysis (BEA) estimated that the CNMI's GDP increased by almost 29
percent in 2016 (to $1.242 billion), after increasing by about 4
percent in 2015. BEA attributed this economic growth to a significant
increase in visitor spending, particularly for casino gambling, and
investment in the construction of a casino resort in Garapan and other
hotel construction in Saipan.\12\ The number of visitors to the CNMI
grew over 10 percent, primarily reflecting an increase in visitor
arrivals from South Korea and China. Reflecting the increase in
economic activity, employment rose by approximately 25 percent, from
23,344 in 2013 to 29,215 in 2016. However, documented patterns of labor
abuse and exploitation of foreign workers by certain CNMI employers in
recent decades have also led to calls for improving the employment
opportunities of U.S. workers and strengthening labor protections.\13\
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\12\ See S. Rep. No. 115-214 at 7. See U.S. Govt. Accountability
Office, ``Commonwealth of the Northern Mariana Islands: Recent
Economic Trends and Preliminary Observations on Workforce Data,''
GAO-18-373T (Feb. 2018), https://www.gao.gov/products/GAO-18-373T.
\13\ See S. Rep. No. 115-214 at 8 (referring to protections such
as ``higher minimum wage requirements, the potential for revocation,
legitimate business requirements, [and] a prohibition on the use of
CW visas for construction workers'').
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The number of guest workers in the CNMI surged in the 1980s when
garment manufacturers from Hong Kong and Korea set up business in the
CNMI. The CNMI economy became dependent on foreign labor as the garment
and tourism industries expanded in the 1980s and 1990s. According to an
October 1999 economic study by the Northern Marianas College, garment
manufacturing and tourism accounted for about 85 percent of the CNMI's
total economic activity and 96 percent of its exports.\14\ The CNMI's
guest worker program gained worldwide notoriety in the 1990s when
reports of sweatshop conditions and widespread abuse of guest workers
began to surface.\15\ Notwithstanding large lawsuit settlements and
independent monitoring at garment factories, the number of labor abuses
continued to be significant.\16\
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\14\ U.S. Government Accountability Office, ``U.S. Insular
Areas: Economic, Fiscal, and Financial Accountability Challenges,''
GAO-07-119 (Dec. 12, 2006) https://www.gao.gov/products/GAO-07-119.
\15\ Scott L. Cummings, ``Hemmed In Legal Mobilization in the
Los Angeles Anti-Sweatshop Movement,'' Berkeley Journal of
Employment and Labor Law, Volume 30, 2009.
\16\ U.S. Department of the Interior, Office of Insular Affairs,
``Federal Ombudsman's Report on the Status of Nonresident Workers in
the Commonwealth of the Northern Mariana Islands: Current
Conditions, Issues and Trends in the CNMI'' (Mar. 29, 2006), http://www.doi.gov/oia/reports/upload/OmbudsmansReport.pdf. (concluding
that while labor conditions had improved ``significantly'' in the
CNMI since the late 1990s, ``complaints of illegal recruitment scams
and nonpayment of wages [were] still prevalent.'').
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[[Page 12384]]
Changes to international trade law and various external events led
to declines in the garment and tourism industries in the early 2000s.
In the process, the CNMI's dependence on foreign labor in those
industries also declined. In 2016, foreign workers were primarily
employed in the following occupations: Food preparation and serving
related (1,434 foreign workers); management (1,423); office and
administrative support (1,269); construction and extraction (1,221);
and education, training, and library (1,016). Foreign workers
especially outnumbered U.S. workers in education, training, and library
(1,016 foreign workers compared to 214 U.S. workers); construction and
extraction (1,221 foreign workers compared to 268 U.S. workers); and
building and grounds cleaning and maintenance (895 foreign workers
compared to 255 U.S. workers).\17\
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\17\ CNMI Department of Commerce, Statistical Yearbook 2017,
Table 5.24 ``Average Hourly Wages by Occupation and Citizenship,
CNMI: 2016,'' http://ver1.cnmicommerce.com/sy-2017-table-5-17-31-wage-survey/.
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D. Comments on the Rulemaking From Governor of the CNMI
Pursuant to section 3(b)(3) of the Workforce Act, the Governor
submitted comments and recommendations on the development of this IFR
in a September 2018 letter. In the letter, the Governor recommended
that the Department adopt a regulatory framework for the Commonwealth's
CW-1 program similar to the H-2B program's framework for Guam, in which
the government of Guam approves TLCs. Specifically, the letter stated
that ``[g]iven the changing nature of the CNMI labor force, and the
lack of DOL statistics for the CNMI labor force, it would be in the
interest of both DOL and the CNMI to authorize that the preliminary
determination of U.S. worker availability in occupational categories
petitioned for CW-1 permits be granted to the CNMI government.''
Alternatively, the Governor recommended that the Commonwealth
collaborate with the Department by providing the Department with data
on the number of U.S. workers available in the Commonwealth's major
occupational categories. The Governor suggested that the Department use
this information to determine whether applications for TLC must be
approved.
In accordance with the Workforce Act, the Department has considered
the Governor's recommendations in the development of this regulation.
As stated in sec. 3(b)(3)(B) of the Workforce Act, the Department may
include provisions in this IFR ``that are responsive to any
recommendation of the Governor that is not inconsistent with this
Act,'' including the need to protect U.S. workers.
The Governor's request for the authority to issue TLCs in the same
manner as the government of Guam approves TLCs in the H-2B program is
inconsistent with the statute. This procedure for Guam was established
by DHS regulation, under which a petitioning employer must apply for a
temporary labor certification with the Governor of Guam. 8 CFR
214.2(h)(6)(iii)(A). The Workforce Act mandates that the Secretary of
Homeland Security may not approve a CW-1 petition unless the employer
has received a TLC from the Secretary. Public Law 115-218 sec.
3(a)(2)(B), 48 U.S.C. 1806(d)(2)(A). The underlying statutory schemes
and histories for these programs are different. Given DOL's
longstanding role in issuing TLCs in other contexts, as well as
Congress' express direction that DOL issue such TLCs, DOL respectfully
declines the Governor's request.
The Governor also requested that the Department use Commonwealth-
provided local data in major occupational categories as the primary
means for granting TLCs. This request is inconsistent with statutory
requirements. The statute states that a TLC must confirm the lack of
qualified workers available at the time and place needed to perform the
job for which foreign workers are sought. Public Law 115-218 sec.
3(a)(2)(A)(i)(I), 48 U.S.C. 1806(d)(2)(A)(i)(I). The statute requires a
case-by-case determination of worker unavailability at the particular
time and location of the job for which foreign workers are sought, as
opposed to a determination based on general data about worker
availability in certain occupational categories. Therefore, the
Department did not accept this proposal. It should also be noted that
the Governor's suggestion does not provide any details as to what kind
of local data might be provided and that it is unclear how ``major
occupational categories'' would be determined or whether those
categories would align with the occupations for which there is demand
in the CW-1 program. It is possible that local data could be useful to
the CO when deciding whether additional recruitment methods are
required, but without substantial details as to what kind of data is
being proposed, it is not possible to determine whether such data would
be useful to the CO.
E. Request for Comments on all Aspects of This Interim Final Rule
The Department invites the public to submit comments on this IFR.
The standards and procedures for employers to obtain a TLC under this
IFR are largely equivalent to the provisions governing the H-2B
temporary nonagricultural program, 80 FR 24042 (Apr. 29, 2015) (2015 H-
2B Rule).
III. Discussion of 20 CFR Part 655, Subpart E
A. Introductory Sections
1. Section 655.400, Scope and Purpose of Subpart E
This section informs program users of the statutory authority for
the CW-1 TLC process, and the scope of the Department's role in
receiving, reviewing, and adjudicating applications for TLC, and in
upholding the integrity of CW-1 Applications for Temporary Employment
Certification. It is through the regulatory provisions in this subpart
that the Secretary makes the statutory determination that: (1) There
are not sufficient U.S. workers in the Commonwealth who are able,
willing, qualified, and who will be available at the time and place
needed to perform the services or labor for which an employer desires
to import foreign workers; and (2) the employment of the CW-1 worker(s)
will not adversely affect the wages and working conditions of U.S.
workers similarly employed. Under the authority in 48 U.S.C.
1806(d)(2)(A), this section also explains that this subpart establishes
the minimum standards and obligations with respect to the terms and
conditions of the TLC with which CW-1 employers must comply, as well as
the rights and obligations of CW-1 workers and workers in corresponding
employment.
2. Section 655.401, Authority of Agencies, Offices and Divisions in the
Department of Labor
This section describes the authority of and division of activities
related to the CW-1 program within DOL. It discusses the authority of
OFLC, an office within the Department's Employment and Training
Administration (ETA), to issue TLCs and carry out the Secretary's
statutory responsibilities as required by 48 U.S.C. 1806.
3. Section 655.402, Definition of Terms
This section establishes definitions of the terms used in part 655,
subpart E. To the extent possible, the definitions in this section are
consistent with the definition of terms used in other TLC programs,
such as the H-2A and H-2B programs.
[[Page 12385]]
a. Administrative Law Judge
Administrative Law Judge (ALJ) means a person within the
Department's Office of Administrative Law Judges (OALJ) appointed under
5 U.S.C. 3105, or a panel of such persons designated by the Chief ALJ
from the Board of Alien Labor Certification Appeals (BALCA or Board)
established by part 656 of this chapter, but which must hear and decide
administrative judicial reviews, as set forth in Sec. 655.461.
b. Agent
Agent is a term commonly defined and used in other TLC programs and
is defined in this section similarly as a person or entity authorized
to act on behalf of the employer for TLC purposes, and does not itself
employ workers with respect to a specific application. This definition
further provides that the agent representing the CW-1 employer must not
be disallowed from practice before any court, the Department, the
Executive Office for Immigration Review (EOIR) or DHS under 8 CFR 292.3
or 1003.101.
c. Applicant
Applicant means a U.S. worker who is applying for a job
opportunity, or on whose behalf an application is made, in response to
the employer's recruitment efforts required by this subpart and for
which an employer has filed a CW-1 Application for Temporary Employment
Certification.
d. Application for Prevailing Wage Determination
The Application for Prevailing Wage Determination means the Office
of Management and Budget (OMB)-approved Form ETA-9141C and the
appropriate appendices, submitted by an employer, as set forth in Sec.
655.410, to secure a PWD for use in filing a CW-1 Application for
Temporary Employment Certification.
e. CW-1 Application for Temporary Employment Certification
The CW-1 Application for Temporary Employment Certification means
the OMB-approved Form ETA-9142C and the appropriate appendices, a valid
PWD, and all supporting documentation submitted by an employer, as set
forth in Sec. Sec. 655.420 through 655.422, to secure a TLC
determination from OFLC Administrator.
f. Attorney
Attorney means any person who is a member in good standing of the
bar of the highest court of any State, possession, territory, or
commonwealth of the United States, or the District of Columbia. An
attorney can act as an agent as defined in, and subject to the
requirements of, this regulation.
g. Board of Alien Labor Certification Appeals or BALCA
BALCA means the permanent Board established by part 656 of this
chapter, chaired by the Chief ALJ, and consisting of ALJs appointed
pursuant to 5 U.S.C. 3105 and designated by the Chief ALJ to be members
of BALCA, to handle all administrative judicial reviews in accordance
with Sec. 655.461 of this subpart.
h. Certifying Officer or CO
CO means the person who processes CW-1 Applications for Temporary
Employment Certification submitted by employers with authority to grant
or deny TLC, as set forth in Sec. 655.450 of this subpart, under the
CW-1 program. The OFLC Administrator is the national CO. Other COs may
also be designated by the OFLC Administrator to make the determinations
required under this subpart, including making PWDs.
i. Chief Administrative Law Judge or Chief ALJ
Chief ALJ means the chief official of the Department's OALJ or the
Chief ALJ's designee.
j. CNMI Department of Labor
The CNMI Department of Labor means the executive Department of the
Commonwealth Government that administers employment and job training
activities for employers and U.S. workers in the Commonwealth.
k. Commonwealth or CNMI
Commonwealth or CNMI, used interchangeably in this subpart, means
the Commonwealth of the Northern Mariana Islands.
l. Corresponding Employment
Corresponding employment means the employment of U.S. workers who
are not CW-1 workers by an employer that has an approved CW-1
Application for Temporary Employment Certification in any work included
in the approved job offer, or in any work performed by the CW-1
workers. Workers in corresponding employment may be either workers
hired during the recruitment process, in connection with the CW-1
Application for Temporary Employment Certification, or workers who
already work for the employer and who perform any work included in the
approved job order or any work performed by CW-1 workers.
m. CW-1 Petition
The CW-1 petition means USCIS Form I-129CW, Petition for a CNMI-
Only Nonimmigrant Transitional Worker, a successor form, other form, or
electronic equivalent, any supplemental information requested by USCIS,
and additional evidence as may be prescribed or requested by USCIS.
n. CW-1 Worker
The CW-1 worker means any foreign worker who is lawfully present in
the Commonwealth and authorized by DHS to perform temporary labor or
services under 48 U.S.C. 1806(d).
o. Date of Need
The date of need means the first date the employer requires
services of the CW-1 workers as indicated on the CW-1 Application for
Temporary Employment Certification.
p. Department of Homeland Security or DHS
DHS means the Federal Department having jurisdiction over certain
immigration-related functions, acting through its component agencies,
including USCIS.
q. Employee
Employee means a person who is engaged to perform work for an
employer, as defined under the general common law of agency. Some of
the factors relevant to the determination of employee status include:
The hiring party's right to control the manner and means by which the
work is accomplished; the skill required to perform the work; the
source of the instrumentalities and tools for accomplishing the work;
the location of the work; the hiring party's discretion over when and
how long to work; and whether the work is part of the regular business
of the hiring party. Other applicable factors may be considered and no
one factor is dispositive. The terms employee and worker are used
interchangeably in this subpart.
r. Employer
Employer means, in summary, a person with a physical location in
the Commonwealth that has an employer relationship with a CW-1 worker
or worker in corresponding employment under the common law of agency,
and that possesses a Federal Employer Identification Number.
s. Employer-Client
Employer-client means an employer that has entered into an
agreement with a job contractor and that is not an affiliate, branch,
or subsidiary of the job
[[Page 12386]]
contractor, under which the job contractor provides services or labor
to the employer-client on a temporary basis and will not exercise
substantial, direct day-to-day supervision and control in the
performance of the services or labor to be performed other than hiring,
paying, and firing the workers.
t. Employment and Training Administration or ETA
ETA means the agency within the Department that includes OFLC and
has been delegated authority by the Secretary to fulfill the
Secretary's mandate under the Workforce Act for the administration and
adjudication of a CW-1 Application for Temporary Employment
Certification and related functions.
u. Federal Holiday
Federal holiday means a legal public holiday as defined at 5 U.S.C.
6103.
v. Full-Time
Full-time for the CW-1 program is 35 or more hours of work per
week.
w. Governor
Governor means the Governor of the Commonwealth of the Northern
Mariana Islands.
x. Job Contractor
Job contractor means an employer that contracts services or labor
on a temporary basis to one or more employers which is not an
affiliate, branch, or subsidiary of the job contractor and where the
job contractor will not exercise substantial, direct day-to-day
supervision and control over the services or labor other than hiring,
paying, and releasing the workers.
Job contractors generally have an ongoing business of supplying
workers to other employers where substantial, direct day-to-day
supervision, scheduling, and assignment of work occurs. The following
examples illustrate the differences between an employer that is a job
contractor and an employer that is not. Employer A is a construction
staffing company. It sends several of its employees to Acme Corporation
to perform construction work on a commercial building for 11 months.
Although Employer A has hired these employees and will be issuing
paychecks to these employees for the time worked at Acme Corporation,
Employer A will not exercise substantial, direct day-to-day supervision
and control over its employees during their performance of services at
Acme Corporation. Rather, Acme Corporation will direct and supervise
the Employer A employees during the 11-month project period. Under this
particular set of facts, Employer A would be considered a job
contractor. By contrast, Employer B is a computer repair company. It
sends several of its employees to Acme Corporation and many other
employers during the course of a year to disassemble desktop computers
for repair and maintenance. Among the employees that Employer B sends
to Acme Corporation and these other employers are several computer
repair technicians and one supervisor. Employer B's supervisor
instructs and supervises the technicians as to the desktops to be
repaired at each employer's establishment. Under this particular set of
facts, Employer B generally would not be considered a job contractor.
y. Job Offer
Job offer means the written offer made by an employer or potential
employer of CW-1 workers to both U.S. and CW-1 workers describing all
the material terms and conditions of employment, including those
relating to wages, working conditions, and other benefits, for which
the CW-1 Application for Temporary Employment Certification is filed.
The minimum content requirements of the employer's job offer are
discussed under Sec. 655.441 of this subpart.
z. Job Opportunity
Job opportunity means full-time employment at a place in the
Commonwealth to which U.S. workers can be referred.
aa. Joint Employment
Where two or more employers each have sufficient definitional
indicia of being a joint employer of a worker under the common law of
agency, they are, at all times, joint employers of that worker. The
Department additionally notes that the CNMI program definitions of
employer, employee, and joint employment that the Department provides
herein are different from the definitions of ``employer,''
``employee,'' and ``employ'' in the Fair Labor Standards Act, 29 U.S.C.
201 et seq. (FLSA) and the definition of ``employ'' in the Migrant and
Seasonal Agricultural Worker Protection Act, 29 U.S.C. 1801 et seq.
(MSPA). Thus, the statutory definitions in the FLSA and MSPA that
determine the existence of an employment relationship or joint employer
status neither apply nor are relevant to the determination of whether
an entity is a CNMI employer or joint employer.
bb. Layoff
Layoff means any involuntary separation of one or more U.S.
employees. This does not include an employer's cause-based termination
actions.
cc. Long-Term Worker
Long-term worker means an alien who was admitted to the CNMI as a
CW-1 nonimmigrant during fiscal year (FY) 2015, and who was granted CW-
1 nonimmigrant status during each of FYs 2016 through 2018. Public Law
115-218 sec. 3(a)(3)(F), 48 U.S.C. 1806(d)(7)(B). As provided by the
statute, long-term workers are exempt from the prohibition on
Construction and Extraction Occupations under the Department's Standard
Occupational Classification Group 47-0000. Public Law 115-218 sec.
3(a)(3)(C), 48 U.S.C. 1806(d)(3)(D)(v).
dd. National Prevailing Wage Center or NPWC
NPWC means that office within OFLC from which employers, agents, or
attorneys who wish to file an CW-1 Application for Temporary Employment
Certification receive a PWD.
ee. NPWC Director
The NPWC Director means the OFLC official to whom the OFLC
Administrator has delegated authority to carry out certain NPWC
operations and functions.
ff. National Processing Center or NPC
NPC means the office within OFLC in which the COs operate, and
which are charged with the adjudication of CW-1 Applications for
Temporary Employment Certification.
gg. NPC Director
The NPC Director is the OFLC official to whom the OFLC
Administrator has delegated authority for purposes of certain NPC
operations and functions.
hh. Occupational Employment Statistics or OES Survey
The OES survey means the program under the jurisdiction of BLS that
reports annual wage estimates for Guam based on standard occupational
classifications (SOCs).
ii. Offered Wage
The offered wage means the wage offered by an employer in the CW-1
Application for Temporary Employment Certification and job offer. The
offered wage must equal or exceed the highest of the prevailing wage,
the Federal minimum wage, or the Commonwealth minimum wage.
[[Page 12387]]
jj. Office of Foreign Labor Certification or OFLC
OFLC means the organizational component of the ETA, within the
Department of Labor, that provides national leadership and policy
guidance and develops regulations to carry out the Secretary's
responsibilities, including overseeing the CW-1 program and issuing
determinations related to an employer's request for an Application for
Prevailing Wage Determination or CW-1 Application for Temporary
Employment Certification.
kk. Place of Employment
The place of employment means the worksite (or physical location)
where work under the CW-1 Application for Temporary Employment
Certification, including the job offer, actually is performed by the
CW-1 workers and workers in corresponding employment. The employer must
provide all known places of employment at the time of filing the CW-1
Application for Temporary Employment Certification.
ll. Prevailing Wage
A prevailing wage is the official wage issued by the NPWC on the
Form ETA 9141C, Application for Prevailing Wage Determination for the
CW-1 Program. The employer must pay all CW-1 workers and U.S. workers
in corresponding employment the highest of the prevailing wage, the
Federal minimum wage, or the Commonwealth minimum wage.
mm. Prevailing Wage Determination or PWD
A PWD is the prevailing wage determination issued by OFLC's NPWC on
the Form ETA-9141C, Application for Prevailing Wage Determination. The
PWD is used in support of the CW-1 Application for Temporary Employment
Certification.
nn. Secretary
The Secretary means the U.S. Secretary of Labor, the chief official
of the U.S. DOL, or the Secretary's designee.
oo. Secretary of Homeland Security
The Secretary of Homeland Security means the chief official of the
U.S. DHS or the Secretary of Homeland Security's designee.
pp. Secretary of State
The Secretary of State means the chief official of the U.S.
Department of State or the Secretary of State's designee.
qq. Strike
Strike means a concerted stoppage of work by employees as a result
of a labor dispute, or any concerted slowdown or other concerted
interruption of operation (including stoppage by reason of the
expiration of a collective bargaining agreement).
rr. Successor in Interest
Successor in interest means an employer, agent or attorney that is
controlling and carrying on the business of a previous employer:
Where an employer, agent, or attorney has violated 48
U.S.C. 1806 or these regulations, and has ceased doing business or
cannot be located for purposes of enforcement, the following factors,
as used under Title VII of the Civil Rights Act and the Vietnam Era
Veterans' Readjustment Assistance Act, may be considered in determining
whether an employer, agent, or attorney is a successor in interest; no
one factor is dispositive, and all the circumstances will be considered
as a whole:
[cir] Substantial continuity of the same business operations;
[cir] Use of the same facilities;
[cir] Continuity of the work force;
[cir] Similarity of jobs and working conditions;
[cir] Similarity of supervisory personnel;
[cir] Whether the former management or owner retains a direct or
indirect interest in the new enterprise;
[cir] Similarity in machinery, equipment, and production methods;
[cir] Similarity of products and services; and
[cir] The ability of the predecessor to provide relief.
For purposes of debarment only, the primary consideration
will be the personal involvement of the firm's ownership, management,
supervisors, and others associated with the firm in the violation(s) at
issue.
ss. Temporary Labor Certification or TLC
TLC means the certification made by the OFLC Administrator, based
on the CW-1 Application for Temporary Employment Certification, job
offer, and all supporting documentation, with respect to an employer
seeking to file with DHS a visa petition to employ one or more foreign
nationals as a CW-1 worker.
tt. United States
The United States means the continental United States, Alaska,
Hawaii, the Commonwealth of Puerto Rico, Guam, the U.S. Virgin Islands,
and the Commonwealth of the Northern Mariana Islands.
uu. U.S. Citizenship and Immigration Services or USCIS
USCIS means the Federal agency within DHS that makes the
determination under the immigration laws whether to grant petitions
filed by employers seeking CW-1 workers to perform temporary work in
the Commonwealth.
vv. United States Worker
United States worker (U.S. worker) means a worker who is:
A citizen or national of the United States;
An alien lawfully admitted for permanent residence; or
A citizen of the Federated States of Micronesia, the
Republic of the Marshall Islands, or the Republic of Palau, who has
been admitted to the United States as a nonimmigrant and is employment-
authorized under the Compacts of Free Association between the United
States and those nations.
ww. Wages
Wages mean all forms of cash remuneration to a worker by an
employer in payment for labor or services.
xx. Work Contract
Work contract means the document containing all the material terms
and conditions of employment relating to wages, hours, working
conditions, places of employment, and other benefits, including all
assurances and obligations required to be included under this subpart.
4. Section 655.403, Persons and Entities Authorized To File
The employer, the employer's agent, or the employer's attorney is
authorized to file Applications for Prevailing Wage Determination and/
or CW-1 Applications for Temporary Employment Certification. To obtain
a TLC, the employer must submit to OFLC a signed and dated Appendix C
of the CW-1 Application for Temporary Employment Certification (Form
ETA-9142C) attesting to comply with all of the terms, assurances, and
obligations of the CW-1 program, regardless of whether it is
represented by an agent or attorney. If an agent or attorney is
identified in the CW-1 Application for Temporary Employment
Certification, that agent or attorney must also sign and date Appendix
C, declaring that the employer has designated the agent or attorney to
act on the employer's behalf in connection with the CW-1 Application
for Temporary Employment Certification. Employers, their agents, and
their attorneys are each responsible
[[Page 12388]]
for the truthfulness and accuracy of the information and documentation
submitted with the CW-1 Application for Temporary Employment
Certification.
5. Section 655.404, Requirements of Agents
In addition to signing Appendix C of the CW-1 Application for
Temporary Employment Certification, an employer's agent is required to
provide, as part of the CW-1 Application for Temporary Employment
Certification, a copy of the current agreement, contract, or other
document defining the scope of its relationship with the employer and
demonstrating the agent's authority to represent the employer. The
Department will review the agreement to determine if a bona fide
relationship exists between the agent and the employer and, where the
agent is also engaged in recruitment, review to ensure it includes
language prohibiting the payment of fees by the worker, as required by
Sec. 655.423(n).
The Department reserves the right to further review the agreement
in the course of an audit examination or other integrity measure and
provide the agreement to DHS or any other Federal Government Official
performing an investigation, inspection, audit, or law enforcement
function. A certification of an employer's CW-1 Application for
Temporary Employment Certification that includes such an agreement in
no way indicates OFLC's approval of the agreement or the terms therein.
The requirement does not obligate either the agent or the employer to
disclose any trade secrets or other proprietary business information;
rather it only requires the agent to provide sufficient documentation
to demonstrate clearly the scope of the agent's relationship with the
employer.
B. Prefiling Procedures
1. Section 655.410, Offered Wage Rate and Determination of Prevailing
Wage
The Workforce Act requires that an employer must pay each CW-1
worker ``a wage that is not less than the greater of--(i) the statutory
minimum wage in the Commonwealth; (ii) the Federal minimum wage; or
(iii) the prevailing wage in the Commonwealth for the occupation in
which the worker is employed.'' 48 U.S.C. 1806(d)(2)(C). The Workforce
Act further provides that ``the Secretary of Labor shall use, or make
available to employers, an occupational wage survey conducted by the
Governor that the Secretary of Labor has determined meets the
statistical standards for determining prevailing wages in the
Commonwealth on an annual basis.'' Id. at 1806(d)(2)(B)(i). Finally,
under the statute, ``[i]n the absence of an occupational wage survey
approved by the Secretary of Labor . . . the prevailing wage for an
occupation in the Commonwealth shall be the arithmetic mean of the
wages of workers similarly employed in the territory of Guam according
to the wage component of the Occupational Employment Statistics Survey
conducted by the Bureau of Labor Statistics.'' Id. at
1806(d)(2)(B)(ii). Section 655.410 of this IFR establishes the
procedures for wage determinations, how employers will obtain a PWD,
and employers record retention requirements for the PWD.
Consistent with 48 U.S.C. 1806(d)(2)(C), Sec. 655.410(a) of the
IFR requires an employer seeking to employ CW-1 workers to offer and
pay the highest of the prevailing wage, the Federal minimum wage,\18\
or the Commonwealth minimum wage to both CW-1 workers and workers in
corresponding employment. While the statute does not expressly state
that the employer must pay the offered wage to workers in corresponding
employment, this requirement is necessary to prevent the employment of
CW-1 workers from causing an adverse effect on the wages and working
conditions of similarly employed U.S. workers. The statute prohibits
the Department from approving an application for TLC unless the
petitioner has demonstrated that there are not sufficient U.S. workers
in CNMI and that employment of CW-1 workers will not adversely affect
the wages of similarly employed U.S. workers. Without this wage
requirement, U.S. workers performing the same work as the work
requested in the job order, but earning less than the advertised wage,
would be required to quit their current employment and re-apply for the
same job with the same employer to obtain the higher wage rate offered
to the CW-1 worker. Such a result is inconsistent with the requirement
to protect against adverse effects on similarly employed U.S. workers.
Section 655.410(a) also clarifies that the issuance of a PWD does not
permit an employer to pay less than the highest wage required by any
applicable Federal or Commonwealth law. This requirement is also
consistent with similar requirements currently in place for other TLC
programs.\19\
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\18\ Effective October 1, 2018, the full Federal minimum wage of
$7.25 per hour applies to workers in the Commonwealth.
\19\ 20 CFR part 655, subpart A; While this requirement is true
also for 20 CFR part 655, subpart B, in terms of the offered wage
requirement, employers do not receive a PWD from DOL's NPWC for the
H-2A program.
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As required by the Workforce Act, Sec. 655.410(b)(1) provides that
if the Governor conducts an annual survey for an occupational
classification, and the survey meets the statistical requirements set
forth in Sec. 655.410(e), as determined by the OFLC Administrator, the
wage reported by the Governor's survey must be the prevailing wage for
the occupational classification. The regulation requires that the
survey must include a mean hourly wage. The requirement that the
Governor's survey reports a mean hourly wage provides consistency
between prevailing wages issued from the Governor's survey and
prevailing wages issued from the OES survey, which by statute must use
the mean wage. See 48 U.S.C. 1806(d)(2)(B)(ii).
After the NPWC reviews the Governor's survey for consistency with
the statistical standards in Sec. 655.410(e), discussed below, OFLC
will make available on its website a listing of all occupational
classifications for which it has determined there is a valid Governor's
survey wage with the accompanying prevailing wage. This will allow
employers to determine the potential wage obligation associated with
the CW-1 program, even before submitting a PWD request.
In the absence of an approved wage survey, the Department will
establish the prevailing wage using the mean wage of workers similarly
employed in Guam from the OES survey. The OES survey is among the
largest continuous statistical wage survey programs and is
cooperatively administered between BLS and the State Workforce Agencies
(SWAs). For the territory of Guam, the OES survey is administered by
BLS and the Guam Department of Labor. BLS funds the OES survey and
provides the statistical procedures and technical support, while the
SWAs and Guam Department of Labor collect most of the data. BLS creates
a national sampling frame by combining the administrative lists of
unemployment insurance (UI) program reports from all of the SWAs into a
single database called the Quarterly Census of Employment and
Wages.\20\ Because the territory of Guam does not report data to the UI
program, the Guam Department of Labor administers an Annual Census of
Establishments survey program to create a database of employers in all
industries
[[Page 12389]]
for use in the OES survey.\21\ The OES survey sample is stratified by
metropolitan and nonmetropolitan area, industry, and size, and the
survey reports wage estimates based on geographic areas at the national
and State levels and for certain territories in which the OES survey
can report statistically valid data, including Guam, but not the CNMI.
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\20\ See Bureau of Labor Statistics, ``Survey Methods and
Reliability Statement for the May 2017 Occupational Employment
Statistics Survey for a comprehensive and technical discussion of
the OES survey methodology,'' https://www.bls.gov/oes/current/methods_statement.pdf.
\21\ The Bureau of Labor Statistics within the Guam Department
of Labor is responsible for administering the Annual Census of
Establishments, which is funded in part by the Department's
Employment and Training Administration under the Workforce
Information Grants, http://bls.guam.gov/annual-census-of-establishments/.
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Wages for the OES survey are straight-time, gross pay, exclusive of
premium pay. For purposes of the OES survey, ``pay'' includes base
rate; cost-of-living allowances; guaranteed pay; hazardous duty pay;
incentive pay, including commissions and production bonuses; piece-
rates; tips; and on-call pay.\22\ The OES survey is a comprehensive and
statistically valid wage survey and is widely used in the DOL's
nonagricultural foreign labor certification programs (H-2B, H-1B, and
PERM). The frequency and precision of the data collected, as well as
the comprehensive nature of the occupations for which such data are
collected, make it an appropriate data source for determining
applicable wages across the range of occupations found in the CW-1
program.
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\22\ See ``Occupational Employment Report Form, Instructions for
Reporting Wage Information,'' p. 2, available at https://www.bls.gov/respondents/oes/pdf/forms/uuuuuu_fillable.pdf.
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The OES prevailing wage that will be used for the CW-1 program is
the mean wage paid to workers in a particular SOC in Guam. The use of
the mean wage in this IFR is required by the Workforce Act. See 48
U.S.C. 1806(d)(2)(B)(ii). The Department will therefore issue
prevailing wages at the mean of all workers ``similarly employed in the
territory of Guam'' in the relevant SOC from the OES survey, without
regard to industry, experience, or skill level.
The Workforce Act requires employers to pay a wage that is the
highest of the Commonwealth minimum wage, the Federal minimum wage, or
the prevailing wage in the Commonwealth. 48 U.S.C. 1806(d)(2)(C).
However, the statute is silent about how the Department must set the
prevailing wage if both: (1) The Governor's annual survey for the
occupation does not meet the Department's statistical standards or the
Governor does not submit a survey covering a given occupation; and (2)
the OES survey does not report a mean of the wages paid to workers in
the SOC in Guam due to insufficient data. In the event this situation
occurs, the Department remains statutorily bound to issue a prevailing
wage given that the statute requires the employer to pay the highest of
the statutory minimum wage, the Federal minimum wage, or the prevailing
wage in the Commonwealth. See 48 U.S.C. 1806(d)(2)(C).
When the OES survey cannot produce a statistically valid wage
estimate for a given geographic area, BLS reports a wage at the next
largest geographic area until it reaches an area large enough that it
has enough data to report.\23\ As a result, when the BLS cannot produce
a statistically valid wage rate for Guam in a given SOC, the reported
wage rate is a national wage for the SOC. OFLC uses that national wage
rate to establish the prevailing wage in Guam in the other foreign
labor certification programs when BLS cannot report a mean wage based
on wages paid to workers in Guam for a given SOC. However, the
Workforce Act's mandate for the Department to base prevailing wage
rates on wages paid to workers in the Commonwealth or Guam as the first
and second prevailing wage options establishes a clear preference in
the CW-1 program for prevailing wage rates to be based on wages paid in
these islands, rather than other geographic areas. As a result, the
Department concludes that it would be inappropriate to require an
employer to pay a prevailing wage that is based only on the national
wage for the SOC from the OES survey, without adjustment, in the CW-1
program. Accordingly, if both prevailing wage sources expressly
provided in the statute do not report a wage, the Department will base
the prevailing wage on the national mean wage for the SOC from the OES,
but will adjust the national SOC wage by the percentage difference
between the mean wage paid to workers in all SOCs for which the OES
survey can produce an average wage paid to workers in Guam compared
with the national mean wage paid to workers in all SOCs in the United
States. Given the lack of available, comprehensive, and reliable
alternative data sources, this method will best meet: (1) The statutory
requirement for the Department to require employers to pay a prevailing
wage; and (2) the statutory intent for the Department to issue
prevailing wage rates based on wages paid to similarly employed workers
in the Commonwealth or Guam. The Department requests comments on its
use of an adjusted national wage to establish the prevailing wage for
the CW-1 program if a mean wage is not available for the occupational
classification from both a survey conducted by the CNMI Governor and
from the OES for workers in Guam, as well as on alternative sources it
might use to establish the prevailing wage in these circumstances.
---------------------------------------------------------------------------
\23\ The BLS practice of survey expansion is generally described
in GAL 2-98, at p. 4.
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Section 655.410(b)(2) provides that if the job duties on the
Application for Prevailing Wage Determination do not fall within a
single occupational classification, the NPWC will determine the
prevailing wage by assigning the highest prevailing wage for all
applicable occupational classifications. This approach ensures that
employers do not adversely affect wages or discourage U.S. workers from
applying for a job by advertising a job which contains the duties of
distinct occupations, and asking workers to perform the duties of a
higher wage occupation while being paid for the duties of a lower wage
occupation. This is codifies existing NPWC procedures and practice for
determining prevailing wages for other foreign labor certification
programs (i.e., H-1B, H-2B, and PERM) and protects against occupational
misclassification.\24\
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\24\ See OFLC Frequently Asked Questions and Answers, https://www.foreignlaborcert.doleta.gov/faqsanswers.cfm.
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Section 655.410(c) requires an employer to electronically request
and obtain a PWD from the NPWC before electronically submitting its CW-
1 Application for Temporary Employment Certification. The PWD must be
valid on the day the employer submits the CW-1 Application for
Temporary Employment Certification. To avoid delays, the Department
encourages employers to request a PWD in the CW-1 program at least 90
calendar days before the date the employer plans to file its CW-1
Application for Temporary Employment Certification.
CW-1 employers that lack adequate access to electronic filing,
either due to lack of internet access of physical disability precluding
electronic filing, may file the Application for Prevailing Wage
Determination by mail with a statement of why it qualifies to file by
mail. There is no specific format for the statement but it must
accompany the application at the time of filing. The NPWC will return
without review any application submitted by mail or any method other
than the designated electronic method(s) provided in this regulation,
unless the employer submits the application package in accordance
[[Page 12390]]
with paragraph (c)(1)(ii) of Sec. 655.410 and with the statement of
the need to file by mail. If an employer files its Application for
Prevailing Wage Determination by mail with the required statement of
need, the employer may file its CW-1 Application for Temporary
Employment Certification by mail without a statement of need. This
statement must be updated each fiscal year.
Section 655.410(d) provides that when the NPWC issues the
prevailing wage, it must provide the following information: The
prevailing wage, the source of the prevailing wage, and the Application
for Prevailing Wage Determination, with the NPWC's endorsement to the
employer.
Section 655.410(e) establishes the ``statistical standards'' the
Department will use to evaluate a survey conducted by the Governor
under 48 U.S.C. 1806(d)(2)(B)(i). The Department will use a survey
conducted by the Governor to establish the prevailing wage for an
occupational classification only if the survey meets the following
requirements: (1) The survey must be independently conducted and issued
by the Governor, including through any Commonwealth agency,
Commonwealth college, or Commonwealth university; (2) the survey must
provide the arithmetic mean of the wages of workers in the occupational
classification in the Commonwealth; (3) the independent surveyor must
either make a reasonable, good faith attempt to contact all employers
in the Commonwealth employing workers in that occupation or conduct a
randomized sampling of such employers, which means the surveyor must
collect the wages of workers performing the job duties covered by the
survey's occupational classification without regard to the education,
experience, or immigration status of the workers in the occupational
classification or the size of the employer; (4) if used, the randomized
survey must include the wages of at least 30 workers in the
Commonwealth; (5) if used, the randomized survey must include the wages
of workers in the Commonwealth employed by at least 3 employers; (6) if
used, the randomized survey must be conducted across industries that
employ workers in the occupational classification; \25\ (7) the wage
reported in the survey must include all types of pay, consistent with
the OES definition of ``pay,'' as discussed above; (8) the survey must
be based on wages paid to workers in the occupational classification
not more than 12 months before the date the survey is submitted to the
OFLC Administrator for consideration; and (9) the Governor of the
Commonwealth must submit the survey to the OFLC Administrator, with
specific information about the survey methodology, including such items
as sample size and source, sample selection procedures, types of
payments (e.g., overtime, weekend or holiday pay premiums) included in
the survey, and survey job descriptions, to allow a determination to be
made about the adequacy of the data provided and the validity of the
statistical methodology used in conducting the survey.
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\25\ The occupational classification for the survey is based on
the job duties performed and need not be identical to an SOC.
---------------------------------------------------------------------------
The statistical standards in this IFR for surveys conducted by the
Governor in the CW-1 program are generally consistent with the
regulatory standards for prevailing wage surveys in the H-2B program.
See 20 CFR 655.10(f).\26\ Adherence to the H-2B survey standards will
promote consistency in the wage rates that apply to similarly employed
workers across nonimmigrant programs in the Commonwealth. This
alignment will also make the CW-1 regulation easier to implement
because the Commonwealth government has experience in conducting
prevailing wage surveys under the H-2B standards.
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\26\ The H-2B regulatory survey standards are discussed in depth
in the 2015 H-2B Rule, 80 FR 24146 (Apr. 29, 2015). Except for
limitations on who may conduct a survey--which are not relevant here
because 48 U.S.C. 1806(d)(2)(B)(i) allows only for surveys conducted
by the Governor and the BLS--the regulatory H-2B survey standards
are unaffected by current appropriations riders in the H-2B program.
See ``Effects of the 2016 Department of Labor Appropriations Act''
(Dec. 29, 2015), https://www.foreignlaborcert.doleta.gov/pdf/H-2B_Prevailing_Wage_FAQs_DOL_Appropriations_Act.pdf.
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The CW-1 program is based on the statutory requirement that the
Governor's survey must be conducted ``on an annual basis.'' 48 U.S.C.
1806(d)(2)(B)(i). In comparison to the H-2B program, there are two
notable changes. First, a survey for the CW-1 program must report the
mean and cannot report only the median, unlike in the H-2B program,
which permits a survey to report either a mean or a median only. As
discussed above, this CW-1 requirement will align the survey
methodology for the Governor's survey with the OES methodology required
by the Workforce Act. Either a mean or median rate can be calculated
from the underlying survey data, so limiting CW-1 surveys to those that
produce a mean wage requires no change in the practice of conducting
surveys that is used for H-2B. In addition, past prevailing wage
surveys conducted by the Commonwealth government for the H-2B program
have reported a mean wage, and so the CW-1 regulation will not require
a change to existing practice. Second, Sec. 655.410(e)(8) of this IFR
requires that the survey is based on wages paid to workers in the
occupational classification not more than 12 months before the survey
is submitted to OFLC, while the H-2B regulation permits employers to
submit surveys based on wages paid no more than 24 months before the
survey is submitted. This difference for the CW-1 program is based on
the statutory requirement that the Governor's survey must be conducted
``on an annual basis.''
As provided in Sec. 655.410(f), the OFLC Administrator will review
the survey for compliance with the regulatory requirements. If the OFLC
Administrator finds the wage reported for any occupational
classification is unacceptable, the OFLC Administrator must inform the
Governor in writing of the reasons for the finding. The Governor may
respond to the finding by submitting corrected wage data or by
conducting a new wage survey, and may submit the revised wage data to
the OFLC Administrator for consideration.
Under Sec. 655.410(g), a PWD issued based on either the Governor's
survey or the OES survey will be valid for at least 90 calendar days
and as many as 365 days, the same validity period used by the NPWC
across programs. See, e.g., 20 CFR 656.40(c). The length of the
validity period for the survey will depend, in part, on when the
prevailing wage source used to establish the prevailing wage will be
updated.
As provided in Sec. 655.410(h), employers must retain the PWD for
3 years from the date of issuance if not used in support of a TLC
application or if used in support of a TLC application that is denied,
or 3 years from the end date of the validity period of the CW-1
Application for Temporary Employment Certification, whichever is later.
The employer must submit the PWD to the CO if requested and to any
Federal Government Official performing an investigation, inspection,
audit, or law enforcement function.
Employers may request review of a PWD only through the appeals
process described in Sec. 655.411 of this IFR.
2. Section 655.411, Review of Prevailing Wage Determinations
Paragraph (a) of this section requires an employer that wants to
appeal a PWD to make a written request to the NPWC Director within 7
business days from the date the PWD was issued. Requests made more than
7 business days after
[[Page 12391]]
the issuance of a PWD will be considered time barred. The request for
review must clearly identify the PWD for which review is sought, set
forth the particular grounds for the request, and include any materials
submitted to the NPWC for the purposes of securing the PWD.
Under paragraph (b), the employer may submit supplementary material
with its request for review by the NPWC Director. The NPWC Director
will review the employer's request and accompanying documentation,
including supplementary material provided. After performing a review of
the documentation, the NPWC Director will issue a Final Determination
letter to the employer and, if applicable, to the employer's agent or
attorney, either affirming the PWD as issued or modifying the PWD.
If the employer desires review of the NPWC Director's decision,
paragraph (c) establishes the process the employer must follow to
request review by BALCA. Specifically, the employer must make a written
request for review that must be received by BALCA within 10 business
days from the date the Final Determination letter was issued by the
NPWC Director, and the employer must simultaneously send a copy to the
NPWC Director who issued the Final Determination. Upon receipt of the
request, the NPWC will prepare an Appeal File and submit it to BALCA.
The request for review, statements, briefs, and other submissions of
the parties must contain only legal arguments and may only refer to
evidence that was within the record upon which the decision on the PWD
by the NPWC Director was based. BALCA will then handle the appeal in
accordance with Sec. 655.461 as explained further in the preamble to
that section.
C. CW-1 Application for Temporary Employment Certification Filing
Procedures
1. Section 655.420, Application Filing Requirements
In accordance with Section (2)(A)(i) of the Workforce Act, an
employer must first obtain a TLC from the Department before filing a
CW-1 petition with DHS. Public Law 115-218 sec. 3(a)(3)(B), 48 U.S.C.
1806(d)(2)(A). This section establishes the standards, timeframes, and
procedures for employers to request TLC under the CW-1 program,
including the requirement that the employer must file the TLC
application electronically unless the employer has submitted a
statement when filing the PWD request or files a statement when
submitting the TLC application indicating that it qualifies for one of
the regulatory exemptions in the IFR. The Department believes that the
below regulatory requirements will advance the Department's statutory
obligations. Based on the Department's experience administering other
TLC programs, the requirements outlined below appropriately ensure that
U.S. workers have equal access to job opportunities and protect their
wages and working conditions from adverse effect.
a. Paragraphs (a) and (b), What To File and Statutory Timeframes for
Filing an CW-1 Application for Temporary Employment Certification
Paragraph (a) specifies that an employer seeking TLC must file a
completed CW-1 Application for Temporary Employment Certification--
consisting of the Form ETA-9142C, appropriate appendices, and a valid
PWD--and all supporting documentation and information that this subpart
requires at the time of filing. Incomplete applications will not be
accepted for processing; OFLC will return them without review. In
accordance with the Workforce Act, 48 U.S.C. 1806(d)(3)(D)(i),
paragraph (b)(1) provides that an employer seeking to hire CW-1 workers
must file a completed CW-1 Application for Temporary Employment
Certification no more than 120 calendar days before the employer's date
of need. However, where the employer is seeking TLC to support a
petition to renew a visa (extending the employment of a CW-1 worker),
paragraph (b)(2) requires that the employer file the application no
more than 180 calendar days before the date on which the CW-1 status
expires. See id.
b. Paragraph (c), Location and Methods of Filing
Paragraph (c) of this section establishes the location and method
by which an employer may file a CW-1 Application for Temporary
Employment Certification under the CW-1 program. In paragraph (c)(1),
the Department requires an employer to submit the Form ETA-9142C and
all required supporting documentation to the NPC using an electronic
method(s) designated by the OFLC Administrator. Unless the employer
qualifies to file by mail,, the NPC will return, without review, any
CW-1 Application for Temporary Employment Certification submitted using
a method other than the electronic method(s) designated by the OFLC
Administrator.
c. Paragraph (c)(1), Procedures for Electronic Filing of the CW-1
Application for Temporary Employment Certification
Absent an exemption employers or, if applicable, their agents or
attorneys will prepare and electronically submit CW-1 Applications for
Temporary Employment Certification using OFLC's new Foreign Labor
Application Gateway (FLAG) System at https://flag.dol.gov. E-filing
will be required for the Form ETA-9142C, applicable appendices, and all
supporting documentation required by this subpart. All of these
documents must be electronically submitted at the time of filing to
constitute a complete, properly filed application. In addition, DOL's
forms, will require employers and, if applicable, their authorized
representatives, to designate a valid email address for sending and
receiving official correspondence concerning the processing of these e-
filings by the NPC.
d. Justification for Mandatory Electronic Filing of CW-1 Applications
for Temporary Employment Certification
For the reasons discussed below in the preamble, the Department has
concluded that the e-filing requirement for employers will modernize
the end-to-end electronic processing of CW-1 Applications for Temporary
Employment Certification and create significant administrative
efficiencies for employers in the CNMI and the Department. The
Department has also estimated that mandating e-filing should minimize
costs and burdens for employers and the Department, improve the quality
of the information collected by minimizing errors through system-
generated prompts, ensure required information and document uploads are
provided to reduce the frequency of delays related to filing
applications, improve the quality of information collected, and promote
administrative efficiency and accountability.
Electronic submissions do not require manual data entry by NPC
staff and can be instantaneously categorized and assigned for review by
the NPC. If an electronic CW-1 Application for Temporary Employment
Certification requires amendments or other corrections, those
amendments and corrections can be automatically entered by NPC staff.
Furthermore, as previously stated, electronic submissions are more
likely to include all necessary documentation and information because
the system will require electronic validation of the form entries and
supporting documentation prior to acceptance. Again, employers will
have an immediate opportunity to correct the
[[Page 12392]]
errors or upload the missing documentation. Electronic filing also
expedites the process of addressing any potential problems with an
application because the NPC is able to email an employer or their
representative directly from the electronic filing module to alert it
of information which must be corrected or if it needs clarification
about something. Electronic contact with the employer or their
representative allows for instantaneous delivery of questions to
employers and allows employers to respond quickly as well, which is
much faster than transmitting questions by mail. The electronic system
will also allow an employer or their representative to upload necessary
documentation directly to their case file, which expedites review of
applications and the issuance of final determinations. The Department's
e-filing requirement will improve the customer experience by permitting
more prompt adjudication of applications and reducing paperwork burdens
and mailing costs. This approach should reduce processing delays and
costs employers with access to the internet, as they would otherwise
need to pay for expedited mail or private courier services to submit
corrected applications, as has been OFLC's experience in connection
with its other temporary labor certification programs.\27\
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\27\ 20 CFR part 655, subpart A; 20 CFR part 655, subpart B.
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The Department's e-filing requirement is consistent with several
Federal statutes. First, the Government Paperwork Elimination Act
(GPEA), Public Law 105-277, Title XVII (secs. 1701-1710), 112 Stat.
2681-749 (Oct. 21, 1998), 44 U.S.C. 3504 note, was enacted to improve
customer service and governmental efficiency through the use of
information technology. The GPEA directs federal agencies, when
possible, to use electronic forms, e-filing, and electronic submissions
to conduct agency business with the public. Second, the E-Government
Act of 2002, Public Law 107-347, 116 Stat. 2899 (Dec. 17, 2002), 44
U.S.C. 3601 note, was enacted to encourage use of technology to enhance
governmental functions and services, integrate related interagency
functions, achieve more efficient agency performance, increase public
access to Government information, and reduce costs and burdens for
businesses and other Government entities. Third, the Paperwork
Reduction Act (PRA), 44 U.S.C. 3501 et seq., was enacted with the goal
of reducing paperwork burdens imposed by Government information
collections, improving the efficiency of Government information
collection and the quality of information collected, and minimizing
Government costs associated with the creation, collection, maintenance,
use, and disposition of information. Finally, this e-filing requirement
is consistent with several other open Government initiatives and
information technology modernization policies expressed in memoranda
and Executive Orders, such as E.O. 13571,\28\ which require agencies to
use innovative technology to reduce costs and streamline customer
service processes.
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\28\ E.O. 13571, Streamlining Service Delivery and Improving
Customer Service (Apr. 27, 2011) (requiring agencies to enhance
customer service by ``identifying ways to use innovative
technologies . . . [to] lower[] costs, decreas[e] service delivery
times, and improve[e] the customer experience.''); see also OMB
Memorandum M-11-24, ``Implementing Executive Order 13571 on
Streamlining Service Delivery and Improving Customer Service'' (June
13, 2011) (implementing E.O. 13571).
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The Department is aware that some employers in the CNMI, especially
those located on islands without adequate technological infrastructure,
may be unable to take advantage of the more efficient e-filing process.
Therefore, the Department will permit these employers to file using a
paper-based process if they lack adequate access to e-filing. This IFR
also establishes that individuals with disabilities may file by mail.
e. Paragraphs (c)(2) and (3), Alternative Filing Procedures for
Employers Lacking Adequate Access to Electronic Filing or Due to a
Disability in the CNMI
The Department is also establishing procedures allowing employers
in the CNMI that lack adequate access to e-filing to file by mail and,
for those employers who are unable or limited in their ability to use
or access the electronic application due to a disability, file the
application through other means.
f. Paragraph (d), Original Signature and Acceptance of Electronic
Signatures
Paragraph (d) of this section requires that the CW-1 Application
for Temporary Employment Certification, as filed, contains an
electronic (scanned) copy of the employer's original signature (and
that of the employer's authorized attorney or agent, if the employer is
represented by an attorney or agent) or, in the alternative, use a
verifiable electronic signature method, as directed by the OFLC
Administrator. If the employer, under paragraph (c) of this section, is
permitted to file by mail, the CW-1 Application for Temporary
Employment Certification, when filed, must bear the original signature
of the employer and, if applicable, the employer's authorized attorney
or agent.
When electronically filing the CW-1 Application for Temporary
Employment Certification, the FLAG System will require the employer
and, if applicable, the employer's authorized attorney or agent to
digitally sign the Form ETA-9142C, Appendix C,\29\ or require the
system account holder to upload an electronic (scanned) copy of the
originally signed and dated Appendix C. In the case of a job contractor
filing as a joint employer with its employer-client, a separate signed
and dated Appendix C for the employer-client must also be submitted
concurrently with the CW-1 Application for Temporary Employment
Certification, as required by Sec. 655.421 of this subpart. The
Appendix C is a crucial component of the CW-1 Application for Temporary
Employment Certification because it contains the requisite program
assurances and obligations an employer must provide to the Department.
An employer that fails to provide a signed and dated Appendix C at the
time of filing the CW-1 Application for Temporary Employment
Certification, in accordance with the original signature requirements
of this paragraph, is ineligible to file and its application will be
returned by the NPC without review.
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\29\ Appendix C includes a declaration to be signed by the
employer's attorney or agent, and a separate, lengthier declaration
to be signed by the employer.
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The Department has concluded that this provision will maximize
efficiencies in the application process and establish parity between
paper and electronic documents by expanding the ability of employers,
agents, and attorneys to use electronic methods to comply with
signature requirements for the CW-1 program. As a matter of
longstanding policy, the Department considers an original signature to
be legally binding evidence of the intention of a person with regard to
a document, record, or transaction. Since the implementation of an e-
filing option in late 2012 for the H-2A and H-2B programs, the
Department also has considered a signature valid where the employer's
original signature on a document retained in the employer's file is
photocopied, scanned, or similarly reproduced for electronic
transmission to the Department, whether at the time of filing or during
the course of processing a CW-1 Application for Temporary Employment
Certification. Although acceptance of
[[Page 12393]]
electronic (scanned) copies of original signatures on documents
generates efficiencies in the application process, modern technologies
and evolving business practices are rendering the distinction between
original paper and electronic signatures nearly obsolete. The
Department and employers can achieve even greater efficiencies using
and accepting electronic signature methods.
Under this provision, the Department will permit an employer,
agent, or attorney to sign or certify a document required under this
subpart using a valid electronic signature method. This proposal is
consistent with the principles of two Federal statutes that govern an
agency's implementation of electronic document and signature
requirements. First, the GPEA requires Federal agencies to allow
individuals or entities that deal with the agencies, when practicable,
the option to submit information or transact with the agencies
electronically and to electronically maintain those records. The GPEA
and e-Gov also specifically states that electronic records and their
related electronic signatures are not to be denied legal effect,
validity, or enforceability merely because they are in electronic form,
and encourages Federal Government use of a range of electronic
signature alternatives. See sections 1704, 1707 of the GPEA. Second,
the Electronic Signatures in Global and National Commerce (E-SIGN) Act,
Public Law 106-229, 114 Stat. 464 (June 30, 2000), 15 U.S.C. 7001 et
seq., generally provides that electronic documents have the same legal
effect as their hard copy counterparts.
The GPEA and E-SIGN Act adopt a ``functional equivalence approach''
to electronic signature requirements where the purposes and functions
of the traditional paper-based requirements for a signature must be
considered, together with how those purposes and functions can be
fulfilled in an electronic context. The functional equivalence approach
rejects the precept that Federal agency requirements impose on users of
electronic signatures more stringent standards of security than
required for handwritten or other forms of signatures in a paper-based
environment.
Consistent with the GPEA, the Department will accept an electronic
signature on CW-1 applications as long as it: (1) Identifies and
authenticates a particular person as the source of the electronic
communication; and (2) indicates such person's approval of the
information contained in the electronic communication.\30\ In addition,
OMB guidelines state that a valid and enforceable electronic signature
would require satisfying the following signing requirements: (1) The
signer must use an acceptable electronic form of signature; (2) the
electronic form of signature must be executed or adopted by the signer
with the intent to sign the electronic record; (3) the electronic form
of signature must be attached to or associated with the electronic
record being signed; (4) there must be a means to identify and
authenticate a particular person as the signer; and (5) there must be a
means to preserve the integrity of the signed record.\31\ The
Department will rely on best practices for electronic signature safety
and integrity, such as these five signing requirements. Consistent with
the GPEA and E-SIGN Act, the Department adopts a technology ``neutral''
policy with respect to the requirements for electronic signature. That
is, the employer, agent, or attorney can apply an electronic signature
required on a document using any available technology that meets the
five signing requirements.
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\30\ Section 1710(1) of the GPEA. The definition of electronic
signature in the E-SIGN Act essentially is equivalent to the
definition in the GPEA. The E-SIGN Act defines an electronic
signature as ``an electronic sound, symbol, or process, attached to
or logically associated with a contract or other record and executed
or adopted by a person with the intent to sign the record.'' 15
U.S.C. 7006(5).
\31\ Federal Chief Information Council, ``Use of Electronic
Signatures in Federal Organization Transactions,'' Version 1.0 (Jan.
25, 2013).
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The Department concludes that these standards for electronic
signature are reasonable and accepted by Federal agencies. Promoting
the use of electronic signatures will enable employers, agents, and
attorneys to reduce printing, paper, and storage costs. For employers
that need to retain and refer to multiple CW-1 Applications for
Temporary Employment Certification, the time and costs savings can be
considerable. Since the CW-1 program serves employers located thousands
of miles from the continental United States on the westward side of the
International Date Line, implementing electronic signatures will help
reduce operational costs and maximize processing efficiency for the
Department.
g. Paragraph (e), Requests for Multiple Positions on the CW-1
Application for Temporary Employment Certification
Similar to the Department's administration of other TLC
programs,\32\ paragraph (e) of this section permits an employer to
request certification of more than one position on its CW-1 Application
for Temporary Employment Certification as long as all CW-1 workers will
perform the same services or labor under the same terms and conditions,
in the same occupation, during the same period of employment, and at a
location (or locations) covered by the application. The Department's
experience in managing similar programs demonstrates this policy
reduces the paperwork and advertising burden on employers while also
preventing the NPC from receiving and processing multiple applications
for the same employer and job opportunity. Filing more than one CW-1
Application for Temporary Employment Certification is necessary when an
employer needs CW-1 workers to perform full-time job opportunities that
do not involve the same occupation or comparable work, or needs workers
to perform the same full-time work, but in different areas of intended
employment or with different starting and ending dates.
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\32\ 20 CFR part 655, subparts A and B.
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h. Paragraph (f), Scope of CW-1 Applications for Temporary Employment
Certification
Paragraph (f) of this section specifies the scope of all CW-1
Applications for Temporary Employment Certification submitted by
employers to the NPC. First, paragraph (f)(1) provides that each CW-1
Application for Temporary Employment Certification must be limited to
places of employment within the Commonwealth. In circumstances where
the job opportunity covers places of employment located on more than
one of the islands within the Commonwealth, the employer may submit a
single CW-1 Application for Temporary Employment Certification to the
NPC. However, an employer submitting a CW-1 Application for Temporary
Employment Certification containing places of employment outside the
Commonwealth, regardless of the period of employment, will not be
accepted by the CO.
The CO will use the places of employment identified in the CW-1
Application for Temporary Employment Certification for the purpose of
determining the recruitment requirements employers must follow to
locate qualified and available U.S. workers, and to aid the CO in
assessing whether the wages, job requirements, and terms and conditions
of the job opportunity will adversely affect U.S. workers similarly
employed within the Commonwealth.
Second, paragraph (f)(2) prohibits an association or other
organization of employers from filing a CW-1
[[Page 12394]]
Application for Temporary Employment Certification on behalf of more
than one employer-member under the CW-1 program. An association or
other organization of employers is permitted by this subpart to file
CW-1 Applications for Temporary Employment Certification as either a
sole employer of CW-1 workers, or as an agent representing one
employer-member seeking to employ CW-1 workers.
However, this subpart does not permit an association or other
organization of employers to file CW-1 Applications for Temporary
Employment Certification on behalf of multiple employer-members, each
seeking to employ CW-1 workers in full-time employment. This type of
filing is often referred to as a ``master'' application and is likewise
prohibited in the H-2B program. Only an agricultural association
seeking to employ H-2A workers jointly with its employer-members is
expressly permitted by the INA to file an Application for Temporary
Employment Certification in this manner. Accordingly, except where
otherwise permitted under Sec. 655.421 of this subpart governing job
contractors, each employer-member of an association or other
organization of employers seeking to employ CW-1 workers in full-time
employment within the Commonwealth must submit separate CW-1
Applications for Temporary Employment Certification to the NPC.
i. Paragraph (g), Maximum Period of Employment on the CW-1 Application
for Temporary Employment Certification
Under paragraph (g) of this section, an employer seeking to employ
a CW-1 worker is permitted to identify a period of employment lasting
not more than 1 year. However, an employer seeking to employ a long-
term CW-1 worker, as defined under Sec. 655.402 of this subpart, is
permitted to identify a period of employment lasting not more than 3
years. The effect of these provisions is that the period of employment
on the CW-1 Application for Temporary Employment Certification will be
consistent with the maximum periods of admission permitted by the
Workforce Act,\33\ regardless of whether the employer's need for the
services or labor to be performed is temporary or permanent in nature.
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\33\ See 48 U.S.C. 1806(d)(7)(A)(i) (generally limiting CW-1
permit validity to a period not to exceed 1 year, renewable for no
more than 2 consecutive 1-year periods) and 1806(d)(7)(B) (a long-
term worker may receive a permit that is valid for a period not to
exceed 3 years, renewable for additional 3-year periods during the
transition period).
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Under this provision, an employer seeking a TLC would be required
to disclose the period of employment for the job opportunity in the CW-
1 Application for Temporary Employment Certification. Generally, the
employer will be held to recruiting and filling with a CW-1 worker(s) a
job opportunity that lasts no longer than 1 year. If, however, the
employer attests in the CW-1 Application for Temporary Employment
Certification that it intends to employ a long-term CW-1 worker, and
that the period of employment will be longer than 1 year, the CO would
approve a labor certification lasting no longer than 3 years, the
maximum period permitted by the statute.
Before issuing a NOA under Sec. 655.433, the Department would
review the expected start and end dates of work identified in the CW-1
Application for Temporary Employment Certification as discussed above.
The Department's NOA would not serve as an approval that the
application demonstrated the work under the certification will be
performed by a long-term CW-1 worker. As the Department does not have
access to the identities of CW-1 beneficiaries, only USCIS is able to
make a determination with respect to whether the CW-1 beneficiary
involved in the petition qualifies as a long-term worker.
j. Paragraph (h), Return of CW-1 Applications for Temporary Employment
Certification Based on USCIS Reaching Statutory Cap
The Workforce Act raised the annual numerical limits, or ``visa
caps,'' on the total number of foreign nationals who may be issued a
CW-1 visa or otherwise granted CW-1 status by DHS for FY 2019, and
established new, annually reduced caps for subsequent fiscal years. See
48 U.S.C. 1806(d)(3)(B).\34\ As employer demand for foreign workers in
the CNMI could remain high in relation to these statutory visa caps,
the Department anticipates receiving more requests for TLC than will
result in CW-1 visas in some fiscal years. Based on OFLC's experience
administering the H-1B and H-2B programs, both of which are subject to
statutory visa caps, the Department has determined that an effective
and efficient administration of the CW-1 program must provide for the
suspension of the acceptance of employer applications for TLC as soon
as the statutory visa cap in a fiscal year is reached.
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\34\ The fiscal year in which the annual statutory numerical
limits apply spans October 1 through September 30.
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Accordingly, if USCIS issues a public notice stating that it has
received a sufficient number of CW-1 petitions to meet the statutory
numerical limit on the total number of foreign nationals who may be
issued a CW-1 visa or otherwise granted CW-1 status for the fiscal
year, paragraph (h)(1) of this section authorizes the OFLC
Administrator to return without review any CW-1 Applications for
Temporary Employment Certification with dates of need in that fiscal
year and received on or after the date that the OFLC Administrator
provides public notice.
Paragraph (h)(2) of this section specifies that the OFLC
Administrator will announce, through a notice on OFLC's website, the
last receipt date of the applications OFLC will review, and the return
of CW-1 Applications for Temporary Employment Certification received
after that date reflecting dates of need in the fiscal year for which
the statutory limit has been met. This notice will be effective on the
date it is posted on OFLC's website and will remain in effect until the
close of the fiscal year, unless: (1) USCIS subsequently issues a
public notice stating additional CW-1 visas are available for that
fiscal year; and (2) the OFLC Administrator publishes a new notice
announcing that OFLC will accept additional TLCs with dates of need in
the fiscal year. This provision provides the OFLC Administrator with
flexibility to adapt to future changes DHS may announce in the
availability of CW-1 visas within a fiscal year. The Department reminds
employers that the notices issued under this paragraph are premised on
interagency consultation and visa cap processing considerations by DHS.
Except where a qualifying exemption applies, the Department will not
suspend filing or lift a suspension of filing notice due to the
individual circumstances of employers, workers, or other interested
stakeholders.
Finally, paragraph (h)(3) of this section establishes the two
instances when the OFLC Administrator's notice to return CW-1
Applications for Temporary Employment Certification filed after the
effective date, will not be applied. First, OFLC will not return, but
will continue to process CW-1 Applications for Temporary Employment
Certification filed before the last receipt date listed on the notice
in accordance with all requirements of this subpart. Second, OFLC will
continue to accept the filing of CW-1 Applications for Temporary
Employment Certification by employers that identify in the CW-1
Application
[[Page 12395]]
for Temporary Employment Certification that the CW-1 workers to be
employed under the application will be exempt from the statutory visa
cap for that fiscal year.\35\ Since DHS is the agency responsible for
administering the annual CW-1 visa cap and for making final
determinations regarding any exemptions to the visa cap, the
designation of cap-exempt status in the CW-1 Application for Temporary
Employment Certification is an attestation by the employer at the TLC
stage. Even when an application is prepared by an authorized agent or
attorney, the Department reminds employers that they are obligated to
read and review the CW-1 Application for Temporary Employment
Certification prior to its submission to OFLC, including every page of
the Form ETA-9142C and any applicable appendices and supporting
documentation, as they will be held, through their original signature,
to the assurance that the information contained therein is true and
accurate, subject to penalties contained in this rulemaking and
otherwise according to law.
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\35\ As currently, designed, the form will ask the employer (or
preparer) to indicate the type of CW-1 application it is filing:
Whether it will support a petition for a new visa or a renewal and,
separately, whether it involves long-term workers, cap-exempt
workers, or an emergency situation.
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2. Section 655.421, Job Contractor Filing Requirements
This section establishes the requirements under which job
contractors may file CW-1 Applications for Temporary Employment
Certification in the CW-1 program. Generally, a job contractor, as
defined under Sec. 655.402, has no need for workers itself. Rather,
its need for labor is based on the underlying need of its employer-
clients. A job contractor generally has an ongoing business of
supplying workers to its employer-clients.
Paragraph (a) of this section provides that a job contractor may
file an application on behalf of itself and an employer-client. When
the job contractor does so, the Department will deem the job contractor
a joint employer. Pursuant to paragraph (b), job contractors must also
have a separate contract with each employer-client, and each agreement
may only support one CW-1 Application for Temporary Employment
Certification. While either a job contractor or the employer-client may
file an Application for Prevailing Wage Determination, paragraph (c)
specifies that each of the joint employers is separately responsible
for ensuring that the wage offer(s) listed in the CW-1 Application for
Temporary Employment Certification and related recruitment at least
equals the prevailing wage obtained from the NPWC, or the Federal or
Commonwealth minimum wage, whichever is higher, and that all other wage
obligations are met.
As required by paragraph (d) of this section, a job contractor
filing as a joint employer with its employer-client must submit to the
NPC a completed CW-1 Application for Temporary Employment Certification
clearly identifying its employer-client. This must be accompanied by
the contract or agreement establishing the employers' relationship to
the workers sought. Consistent with the requirements for original
signature explained in further detail under Sec. 655.420(d), the CW-1
Application for Temporary Employment Certification must bear the
original signature of both the job contractor and the employer-client,
or use a verifiable electronic signature method. By signing the CW-1
Application for Temporary Employment Certification, each employer
independently attests to the conditions of employment required of an
employer participating in the CW-1 program. Each employer assumes full
responsibility for the accuracy of the representations made in the
application and for an employer's obligations in the CW-1 program, as
defined in this IFR. If a violation of these obligations has occurred,
either or both employers may be found to be responsible for attendant
penalties and for remedying the violation.
To ensure an adequate level of transparency in the recruitment of
U.S. workers in the CNMI, paragraph (e) establishes standards related
to advertising the job opportunity, interviewing prospective U.S.
workers, and preparing the recruitment report. Specifically, although
either the job contractor or its employer-client may place
advertisements for the job opportunity, conduct the recruitment
required by the CO, and assume responsibility for interviewing U.S.
workers who apply, both joint employers must sign the recruitment
report that is submitted to the NPC as a condition of receiving a final
determination. All recruitment conducted by the joint employers must
satisfy the job-offer-assurance and advertising content requirements,
as specified and further explained under Sec. 655.441.
In order to fully inform prospective applicants of the job
opportunity and avoid potential confusion inherent in a job opportunity
involving two employers, paragraph (e) also requires that the
advertisements clearly identify both employers (the job contractor and
its employer-client) by name and the place(s) of employment where
workers will perform labor or services. In situations where all of the
employer-clients' job opportunities are in the same occupation and have
the same requirements and terms and conditions of employment (including
dates of employment), this paragraph permits a job contractor to
combine more than one of its joint-employer employer-clients' job
opportunities in a single advertisement. The regulation provides a
sample format to assist job contractors in properly disclosing the job
opportunities and creates standard language that job contractors must
use in their advertisements to inform U.S. workers fully on how to
apply for the job opportunities.
Finally, paragraph (f) of this section provides that if a TLC for
the joint employers is granted by the CO, the Final Determination
notice certifying the CW-1 Application for Temporary Employment
Certification will be sent to both the job contractor and its employer-
client, in accordance with the procedures set forth under Sec.
655.452, governing approved certifications.
3. Section 655.422, Emergency Situations
This section provides an employer in a qualifying emergency
situation with some flexibility to participate in the CW-1 program
without first obtaining a PWD from the NPWC. Specifically, paragraph
(a) permits the CO to waive the requirement for an employer to obtain a
PWD prior to filing a CW-1 Application for Temporary Employment
Certification, provided the employer can demonstrate good and
substantial cause and meets the requirements of subpart E. The
requirement to obtain a PWD prior to filing the TLC application is the
only provision of this rule that is waived by the emergency situation
procedures. If the employer's request for emergency situation
procedures is granted, it must comply with all other requirements under
this subpart. To rely on this provision, paragraph (b) requires the
employer to submit to the NPC a completed Application for Prevailing
Wage Determination, a completed CW-1 Application for Temporary
Employment Certification, and a detailed statement describing the good
and substantial cause that has necessitated the waiver request. Good
and substantial cause may include the substantial loss of U.S. workers
due to Acts of God, similar unforeseeable man-made catastrophic events
(such as a
[[Page 12396]]
hazardous materials emergency or government-controlled flooding),
unforeseeable changes in market conditions, pandemic health issues, or
similar conditions that are wholly outside the employer's control.
However, an employer may not justify an emergency situation based
on the Department's promulgation of this IFR and the associated
timeframes for requesting prevailing wage and TLC determinations, which
are foreseeable events required by the statute. A denial of a
previously submitted CW-1 Application for Temporary Employment
Certification or CW-1 petition with USCIS also does not constitute good
and substantial cause. Consistent with OFLC's treatment of emergency
requests for the H-2B program, another program subject to a visa cap,
the CW-1 visa cap does not constitute ``good and substantial cause''
justifying an emergency application. Unlike the H-2B regulations,
however, the CW-1 regulation makes explicit that the visa cap may not
be the basis for such an application, thus clarifying that the
Department does not consider an impending visa cap to be an
unforeseeable event beyond the employer's control. Finally, an employer
may also not use the procedures contained in this section to either
request a waiver of the timeframe for filing an CW-1 Application for
Temporary Employment Certification earlier than that permitted under
Sec. 655.420(b) or request an amendment to the date of need for an CW-
1 Application for Temporary Employment Certification that has already
been submitted to the NPC for processing.
Paragraph (c) of this section establishes the procedures under
which the CO will handle the employer's requests for a waiver. Upon
receipt of the request, the CO will process the Application for
Prevailing Wage Determination and CW-1 Application for Temporary
Employment Certification concurrently and in a manner consistent with
the provisions of this subpart E. While Sec. 655.420(a) states that
incomplete applications are to be returned unprocessed, in the case of
applications which request emergency situation procedures at the time
of filing and do not provide good and substantial cause for doing so,
the application will be returned unprocessed, but with an explanation
as to why the employer failed to justify good and substantial case for
the use of the procedures. Prior to returning the application, the CO
at its discretion, may request additional details about the employer's
good and substantial cause.
CW-1 Applications for Temporary Employment Certification processed
under the emergency situation provision are subject to the same
recruitment requirements, audit processes, and other integrity measures
as nonemergency CW-1 Applications for Temporary Employment
Certification. However, DOL intends to subject emergency applications
to a higher level of scrutiny than nonemergency applications in order
to ensure that this provision is not misused. The regulation provides
the CO with the discretion to reject the emergency filing based on the
totality of the circumstances and documentation provided in the CW-1
Application for Temporary Employment Certification. The CO will
determine the foreseeability of the emergency based on the precise
circumstances of each situation presented. The burden is on the
employer to demonstrate the unforeseeability of the events leading to a
request for a filing on an emergency basis.
4. Section 655.423, Assurances and Obligations of CW-1 Employers
This section contains the terms, assurances, and obligations of the
CW-1 program, similar to requirements for the H-2A and H-2B TLC
programs the Department administers, that will be enforced to ensure
the employment of CW-1 workers will not adversely affect the wages and
working conditions of similarly employed U.S. workers. The terms,
assurances, and obligations contained in this section are essential for
the protection of U.S. workers from adverse effects related to the
hiring of CW-1 workers. As participants in the CW-1 program, employers
are required to review and comply with program provisions to protect
similarly employed U.S. workers. Further, employers are to ensure that
their hiring of CW-1 workers will not disadvantage the U.S. workers in
their employ. Requiring employers to comply with these terms,
assurances, and obligations, which are incorporated into the Form ETA-
9142C, Appendix C, is the most effective way to meet the requirements
of the Workforce Act. The Form ETA-9142C, Appendix C, reiterates
necessary worker protections for the CW-1 program and by completing
Appendix C the employer attests its agreement to ensuring the
protection of CW-1 workers and, further, ensuring that U.S. workers are
both protected and not disadvantaged by the employer's CW-1 employment.
As discussed in the preamble to Sec. 655.402, workers engaged in
corresponding employment are entitled to the same protections and
benefits, set forth below, that are provided to CW-1 workers.
a. Paragraph (a), Rate of Pay
Paragraph (a)(1) of this section, consistent with the Workforce
Act, provides that to protect U.S. worker wages the offered wage in the
work contract must equal or exceed the highest of the prevailing wage
or Federal minimum wage, or Commonwealth minimum wage. If, during the
course of the period certified in the CW-1 Application for Temporary
Employment Certification, the Federal or Commonwealth minimum wage
increases to a level higher than the prevailing wage certified in the
CW-1 Application for Temporary Employment Certification, then the
employer is obligated to pay that higher rate for the work performed
after the new minimum wage takes effect. It also requires the employer
to pay such wages, free and clear, during the entire period of the CW-1
Application for Temporary Employment Certification granted by OFLC. See
29 CFR 531.35. In addition, to ensure the wage equals or exceeds the
highest of the prevailing wage, Federal minimum wage, or Commonwealth
minimum wage, paragraph (a)(2) provides that the wage may not be based
on commissions, bonuses, or other incentives, including paying on a
piece-rate basis, unless the employer guarantees a wage earned every
workweek that equals or exceeds the offered wage.
If one or more minimum productivity standards is required of
workers as a condition of job retention, paragraph (a)(3) requires the
employer to disclose the minimum productivity standards in the work
contract and the employer must be able to demonstrate that such
standards are normal and usual for non-CW-1 employers for the same
occupation in the Commonwealth. Productivity standards must be
expressed in objective and quantifiable terms based on the hours or
days of work needed to produce a unit of production, and the standards
must be specified in a manner that is easily understood by the worker.
The CO will not accept productivity standards that fail to quantify
specifically the expected output per worker or do not clearly
communicate to the worker the output required for job retention. For
example, requiring workers to ``perform work in a timely and proficient
manner,'' ``perform work at a sustained, vigorous pace,'' ``make bona
fide efforts to work efficiently and consistently considering climatic
and other working conditions,'' ``keep up with the work crew,''
``produce at a rate that does not
[[Page 12397]]
detrimentally affect other workers' productivity,'' or ``perform work
in the amount, quality, and efficiency of other workers'' are
unacceptable because such statements lack objectivity, quantification,
and clarity regarding job performance expectations for workers.
Consistent with the Department's administration of the H-2B
program, if an employer wishes to provide productivity standards as a
condition of job retention, the burden of proof rests with the employer
to show that such productivity standards are normal and usual for
employers in the same occupation that are not employing CW-1 workers,
in order to ensure there is no adverse effect on similarly employed
U.S. workers. Some examples of evidence that may be used to prove that
productivity standards are normal and usual include industry-level
reports of typical production standards for a job, copies of production
reports from other employers, and copies of job advertisements from
employers with similar production requirements.
Finally, pursuant to paragraph (a)(4), an employer that pays on a
piece-rate basis must demonstrate that the piece-rate is no less than
the normal rate paid by non-CW-1 employers to workers performing the
same activity in the Commonwealth, and that each workweek the average
hourly piece-rate earnings result in an amount at least equal to the
offered wage (or the employer must make up the difference).
b. Paragraph (b), Wages Free and Clear
To protect the wages of CW-1 workers and workers in corresponding
employment, paragraph (b) requires the employer to timely pay wages
either in cash or in negotiable instrument payable at par. The payment
of wages to workers must also be made finally and unconditionally and
``free and clear,'' in accordance with WHD regulations at 29 CFR part
531. This assurance clarifies the preexisting obligation for both
employers and employees to ensure that wages are not reduced below the
required rate.
c. Paragraph (c), Deductions
Paragraph (c) of this section ensures workers are paid the wage
offered in the job opportunity by limiting deductions that reduce wages
to below the offered wage indicated on the CW-1 Application for
Temporary Employment Certification. Specifically, this section requires
the employer make all deductions required by law, such as taxes payable
by workers that are required to be withheld by the employer and amounts
due under a court order. The section also limits other authorized
deductions to those that are for the reasonable cost or fair value of
board, lodging, or facilities furnished that primarily benefit the
employee, or that are amounts paid to third parties authorized by the
employee or a collective bargaining agreement. The work contract must
specify all deductions not required by law that the employer will make
from the worker's pay. Any such deductions not disclosed in the work
contract are prohibited.
The section also specifies deductions that are never permissible to
the extent they reduce the actual wage below the offered wage.
Additionally, these deductions are always prohibited: those for costs
that are primarily for the benefit of the employer; those not specified
in the work contract; ``kick-backs'' of worker wages, directly or
indirectly, to the employer or to another person for the employer's
benefit; and amounts paid to third parties which are unauthorized,
unlawful, or from which the employer or its foreign labor contractor,
recruiter, agent, or affiliated person benefits.
Consistent with the FLSA and 29 CFR part 531, for deductions not
required by law to be permissible, they must, among other requirements,
be truly voluntary, and may not be a condition of employment as
determined under the totality of the circumstances. Moreover, for
purposes of paragraph (c), a deduction for any cost that is primarily
for the benefit of the employer is never permitted under this IFR. Some
examples of costs that the Department has long held to be primarily for
the benefit of the employer are tools of the trade and other materials
and services incidental to carrying on the employer's business; the
cost of any construction by and for the employer; the cost of required
uniforms (whether purchased or rented) and their laundering; and
transportation charges where such transportation is an incident of and
necessary to the employment. 29 CFR 531.3(d)(1). This list is not all-
inclusive. Further, the concept of de facto deductions initially
developed under the FLSA, where employees are required to purchase
items like uniforms or tools that are employer business expenses, is
equally applicable to purchases that bring CW-1 workers' wages below
the required wage, as the payment of the prevailing wage is necessary
to ensure that the employment of foreign workers does not adversely
affect the wages and working conditions of similarly employed U.S.
workers. Allowing worker deductions for business expenses would
undercut the prevailing wage and, as a result, would hurt U.S. workers.
d. Paragraph (d), Job Opportunity Is Full-Time
Paragraph (d) of this section requires that the job opportunity for
which the employer is seeking to employ CW-1 workers is a full-time
position, and that the employer use a single workweek as its standard
for computing wages due. Additionally, consistent with the FLSA, this
section provides that the workweek must be a fixed and regularly
recurring period of 168 hours, i.e., 7 consecutive 24-hour periods,
which may start on any day and any hour of the day. This establishment
of a clear period for determining whether wages are properly paid by
the employer will help workers understand their wage guarantees and aid
the Department in determining compliance during the audit examination
process.
The requirement that the position be full-time is for the
protection of U.S. workers in the CNMI and for the protection of U.S.
workers in corresponding employment. By virtue of the CW-1 TLC, the
Department requires the employer to ensure that the employment of CW-1
workers will not adversely affect the wages and working conditions of
U.S. workers similarly employed. Comparably, the full-time requirement
is consistent with the Department's administration of its other TLC
programs, the H-2B and H-2A programs, both of which require full-time
positions for issuance of the labor certification.\36\ Most similar to
the H-2B program, the CW-1 program has a statutory numerical visa cap,
which limits the number of annually available visas. As with the capped
H-2B program, the Department believes that allowing CW-1 employers to
hire part-time workers in instances in which an employer could,
instead, choose to hire one or more full-time workers, could serve to
dissuade U.S. workers from the job opportunity or place U.S. workers,
who may be less likely to seek part-time work, at a competitive
disadvantage for employment compared to CW-1 workers. The Department
believes such an allowance would undercut the law as intended, which
serves to encourage the hiring of U.S. workers in the CNMI.
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\36\ See 20 CFR part 655, subpart A (governing H-2B temporary
nonagricultural workers); 20 CFR part 655, subpart B (governing H-2A
temporary agricultural workers). The TLC programs are unlike the
Department's H-1B program, which is a labor condition application
program, for which the U.S. labor market is only tested in very
limited circumstances for H-1B dependent employers and willful
violators not claiming an exemption, and for which certification is
granted unless the application is obviously inaccurate or
incomplete. See 20 CFR part 655, subpart H (governing H-1B labor
condition applications for H-1B workers).
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[[Page 12398]]
e. Paragraph (e), Job Qualifications and Requirements
Paragraph (e) of this section requires that each qualification and
requirement for the job be listed in the work contract, and be bona
fide and consistent with the normal and accepted qualifications and
requirements imposed by non-CW-1 employers in the same occupation and
in the CNMI. This protects U.S. workers and is consistent with
requirements for the Department's administration of similar TLC
programs.\37\ Further, the employer's job qualifications and
requirements imposed on U.S. workers must be no less favorable than the
qualifications and requirements that the employer is imposing or will
impose on CW-1 workers. The CO has the authority to require the
employer to provide sufficient justification for any job qualification
or requirement imposed for the particular job opportunity.
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\37\ 20 CFR part 655, subpart A; 20 CFR part 655, subpart B.
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Consistent with the Department's administration of similar TLC
programs,\38\ job qualifications and requirements must be customary,
i.e., they may not be used to discourage applicants capable of
performing the needed work from applying for the job opportunity. The
standard for employment of CW-1 workers is that there are not
sufficient U.S. workers in the CNMI who are able, willing, and
qualified, and who will be available to perform such services or labor.
For purposes of complying with this statutory mandate, the Department
has clarified the meaning of qualifications and requirements. A
qualification means a characteristic that is necessary to the
individual's ability to perform the job in question. Such
characteristics include the ability to use specific equipment or any
education or experience required for performing a certain job task. A
requirement, on the other hand, means a term or condition of employment
that a worker must accept in order to obtain or retain the job
opportunity.
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\38\ 20 CFR part 655, subpart A; 20 CFR part 655, subpart B.
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To the extent an employer has requirements that are related to the
U.S. workers' qualifications or availability, the Department uses the
Occupational Information Network database (O*NET) as a primary source
for occupational qualifications and requirements, and will therefore
consult O*NET when making a determination as to whether qualifications
or requirements are normal for a specific job. For example, the
Department recognizes that background checks are used in private
industry, so employers may conduct them to the extent that the
requirement is a bona fide, normal, and accepted requirement applied by
non-CW-1 employers for the occupation in the area of employment, and
the employer applies the same criteria to both CW-1 and U.S. workers.
However, where such job requirements are included in the recruitment
materials, the Department may inquire further as to whether such
requirements are normal and accepted by non-CW-1 employers in the CNMI
and by which methods the employer will use such requirements.
f. Paragraph (f), Three-Fourths Guarantee
To ensure CW-1 workers and workers in corresponding employment are
provided full-time employment under the work contract, the employer
must guarantee under paragraph (f)(1) to offer each worker employment
for a total number of work hours equal to at least three-fourths of the
workdays of the total period of employment specified in the work
contract, beginning with the first workday after the arrival of the
worker at the place of employment or the advertised contractual first
date of need, whichever is later, and ending on the expiration date
specified in the work contract or in its extensions, if any.
Paragraph (f)(1)(i) defines a workday to mean the number of hours
in a workday as stated in the work contract. The employer must offer a
total number of hours to ensure the provision of sufficient work to
reach the three-fourths guarantee. The work hours must be offered
during the work period specified in the work contract, or during any
modified work contract period to which the worker and employer have
mutually agreed and that has been approved by the CO. In the event the
worker begins working later than the specified beginning date,
paragraph (f)(1)(ii) clarifies that the guarantee period begins with
the first workday after the arrival of the worker at the place of
employment and continues until the last day during which the work
contract and all extensions thereof are in effect. To assist employers
in complying with the three-fourths guarantee, paragraph (f)(1)(iii)
provides a practical example of how to calculate the guaranteed total
number of work hours for a 10-week work contract period.
Paragraph (f)(1)(iv) establishes additional standards for employers
to comply with this provision. Specifically, although a worker may be
offered more than the specified hours of work on a single workday, the
worker cannot be required to work for more than the number of hours
specified in the work contract for a workday. However, all hours of
work actually performed may be counted by the employer in calculating
whether the period of guaranteed employment has been met. An employer
will not be considered to have met the work guarantee if the employer
has merely offered work on three-fourths of the workdays of the work
contract period if each workday did not consist of a full number of
hours of work time as specified in the work contract.
To ensure workers are not adversely impacted in their employment,
if during the total work contract period the employer affords the U.S.
or CW-1 worker less employment than that required under the three-
fourths guarantee, the employer must pay such worker the amount the
worker would have earned had the worker, in fact, worked for the
guaranteed number of days. For workers that are paid on a piece-rate
basis, paragraph (f)(2) specifies that the employer must use the
worker's average hourly piece-rate earnings or the offered wage,
whichever is higher, to calculate the amount due under the guarantee in
accordance with paragraph (f)(1) of this section.
Pursuant to paragraph (f)(3), any hours the worker fails to work,
up to a maximum of the number of hours specified in the work contract
for a workday, when the worker has been offered an opportunity to work,
and all hours of work actually performed (including voluntary work over
8 hours in a workday), may be counted by the employer in calculating
whether the period of guaranteed employment has been met. An employer
seeking to calculate whether the guaranteed number of hours has been
met must maintain the payroll records in accordance with this subpart.
Based on its experience with administering TLC programs, the
Department has concluded that a three-fourths guarantee strikes an
appropriate balance of guaranteeing the benefits of full-time
employment to workers, while providing employers with sufficient
flexibility to spread the required work contract hours over a
sufficiently long period of time such that the vagaries of the weather
or other events out of their control that affect their need for labor
do not prevent employers from fulfilling their guarantee. When
employers file applications for CW-1 TLCs, they represent that they
have a need for full-time workers during the entire certification
period. Therefore, it is important to the integrity of the program,
which is a capped visa
[[Page 12399]]
program, to have a methodology for ensuring that employers have fairly
and accurately estimated their temporary need.
The guarantee also deters employers from misusing the program by
overstating their need for full-time workers. This will prevent
employers from overestimating the hours of work needed per week, or the
total number of workers required to do the work available. The
guarantee will not only result in U.S. and CW-1 workers actually
working most of the hours promised in the work contract, but also free
up capped CW-1 visas for other employers whose businesses need CW-1
workers.
g. Paragraph (g), Impossibility of Fulfillment
Paragraph (g) of this section allows an employer to terminate the
work contract in certain narrowly prescribed circumstances where the
services of the worker are no longer required for reasons beyond the
control of the employer due to fire, weather, or other Act of God, or
similar unforeseeable man-made catastrophes (such as oil spills or
controlled flooding) wholly outside the employer's control that makes
fulfillment of the work contract impossible. In such an event, the
employer must fulfill the three-fourths guarantee for the time that has
elapsed from the start date listed in the work contract or the first
workday after the arrival of the worker at the place of employment,
whichever is later, to the time of its termination.
To safeguard the employment of the workers, this paragraph also
requires the employer to make efforts to transfer the CW-1 worker (to
the extent permitted by DHS) and worker in corresponding employment to
other comparable employment acceptable to the worker. Actions employers
could take include contacting any known CW-1 employers with comparable
employment or the CNMI Department of Labor for assistance in placing
workers with other CNMI employers with comparable job vacancies. Absent
such placement, the employer is required to comply with the
transportation requirement, as set forth under Sec. 655.423(j), to
return the worker to the place from which the worker came prior to
entering the Commonwealth (disregarding intervening employment \39\) or
transport the worker to the worker's next certified CW-1 employer,\40\
whichever the worker prefers. CO approval is required before
terminating the work contract with the workers. Simply submitting a
request to the CO is insufficient to terminate the work contract and
absolve the employer of the three-fourths guarantee.
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\39\ In terms of the referenced transportation requirements in
an intervening employment situation for the CW-1 worker, where there
is an initial CW-1 employer and a subsequent non-CW-1 employer, the
obligation to pay for the transportation costs between the place of
employment with the CW-1 employer and the subsequent place of
employment with the non-CW-1 employer depends on the subsequent
employer's work contract. In the absence of a contractual agreement
to pay for travel costs, the CW-1 employer is obligated to pay the
travel expenses between its place of employment and the immediate
subsequent place of employment with the non-CW-1 employer.
\40\ In terms of the referenced transportation requirements in
an intervening employment situation for the CW-1 worker, where there
is an initial CW-1 employer and a subsequent CW-1 employer, the
initial CW-1 employer is responsible for transporting the CW-1
worker from its place of employment to the subsequent CW-1
employer's place of employment, but the subsequent CW-1 employer is
responsible for reimbursing the initial CW-1 employer with
transportation costs.
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h. Paragraph (h), Frequency of Pay
Paragraph (h) of this section requires that the employer indicate
the frequency of pay in the work contract, and guarantee to pay workers
at least every 2 weeks and when wages are due. The requirement that
workers be paid at least every 2 weeks is designed to protect
financially vulnerable workers. Allowing an employer to pay less
frequently than every 2 weeks would impose an undue burden on workers
who are often paid low wages and may lack the means to make their
income last through a month until they get paid.
i. Paragraph (i), Earnings Statements
To ensure compliance with the wage requirements of this subpart and
transparency of the requirement to workers, paragraph (i)(1) of this
section requires the employer to maintain accurate and adequate records
with respect to the workers' earnings and to specify the minimum amount
of information to be retained. The employer is further required under
paragraph (i)(2) to furnish to each worker an appropriate written
earnings statement on or before each payday, specifying the information
that the employer must include in such a statement (e.g., the worker's
total earnings for each workweek in the pay period, the hourly rate or
piece-rate of pay, the hours of employment offered and hours actually
worked by the worker, and an itemization of all deductions from the
worker's wages).
The Department notes that this paragraph also requires employers to
maintain records of any additions made to a worker's wages and to
include such information in the earnings statements furnished to the
worker. Such additions could include performance bonuses, cash
advances, or reimbursements for costs incurred by the worker. This
requirement is consistent with the recordkeeping requirements under the
FLSA in 29 CFR part 516. See 29 CFR part 785 for guidance regarding
what constitutes hours worked.
The Department has concluded that any administrative burden
resulting from this provision is outweighed by the importance of
providing workers with this crucial information, especially because an
earnings statement provides workers with an opportunity to quickly
identify and resolve any anomalies with the employer and will hold
employers accountable for proper payment. Similar to Sec. 655.20(i) in
the H-2B program, this IFR requires an employer to record the reasons
why a worker declined any offered hours of work, which will support the
Department's audit examination activities related to the three-fourths
guarantee previously discussed under paragraph (f) of this section.
j. Paragraph (j), Transportation and Visa Fees
Consistent with the Department's transportation provisions in
similar TLC programs, paragraph (j)(1)(i) of this section requires an
employer to provide inbound transportation and subsistence during
transportation to CW-1 employees and to U.S. employees in corresponding
employment who have traveled to take the position from such a distance
that they are not reasonably able to return to their residence each
day, if the workers complete 50 percent of the period of employment
covered by the work contract (not counting any extensions). Before the
50 percent point, employers have no responsibility under the CW-1
program to pay these expenses. Transportation and subsistence costs
must be paid for travel between the place from which the worker has
come to work for the employer, whether in the United States, including
another part of the CNMI, or abroad, to the place of employment. This
paragraph provides that employers may arrange and pay for the
transportation and subsistence directly; advance, at a minimum, the
most economical and reasonable common carrier cost and subsistence; or
reimburse the worker's reasonable costs. If the employer advances or
provides transportation and subsistence costs to foreign workers, or it
is the prevailing practice of non-CW-1 employers in the CNMI to do so,
the employer must advance such costs or provide the
[[Page 12400]]
services to workers in corresponding employment traveling to the place
of employment. The Department has concluded that this approach is
appropriate and adequately protects the interests of both U.S. and CW-1
workers and employers because it does not require employers to pay the
inbound transportation and subsistence costs of U.S. workers recruited
pursuant to CW-1 job offers who do not remain on the job for more than
a very brief period.
Paragraph (j)(1)(ii) requires the employer, at the end of the
employment, to provide or pay for the U.S. or foreign worker's return
transportation and daily subsistence from the place of employment to
the place from which the worker departed to work for the employer, if
the worker has no immediate subsequent approved CW-1 employment.
However, this obligation attaches only if the worker completes the
period of employment covered by the work contract or if the worker is
dismissed from employment for any reason before the end of the
certified period of employment. The employer is required to provide or
pay for the return transportation and daily subsistence of a worker who
has completed the period of employment listed on the certified CW-1
Application for Temporary Employment Certification, regardless of any
subsequent extensions of the work contract for that worker. An employer
is not required to provide return transportation if separation is due
to a worker's voluntary abandonment or termination for cause, as set
forth under Sec. 655.423(v). If the worker has been contracted to work
for a subsequent and certified employer, the last CW-1 employer to
employ the worker is required to provide or pay the U.S. or foreign
worker's return transportation. Therefore, prior employers are not
obligated to pay for such return transportation costs.
Paragraph (j)(1)(iii) of this section requires that all employer-
provided transportation--including transportation to and from the place
of employment, if provided--comply with all applicable Federal and
Commonwealth laws and regulations including vehicle safety standards,
driver licensure requirements, and vehicle insurance coverage.
And finally, to protect CW-1 workers from predatory and abusive
labor practices, paragraph (j)(2) of this section requires the employer
to pay or reimburse the worker in the first workweek for all visa, visa
processing, border crossing, and other related fees (including those
mandated by the government) incurred by the CW-1 worker, but not for
passport expenses or other charges primarily for the benefit of the
worker.
Under the FLSA and as the Department has explained in Wage and
Hour's Field Assistance Bulletin No. 2009-2 (Aug. 21, 2009),
transportation, subsistence, and visa and related expenses for CW-1
workers are for the primary benefit of employers. The employer
primarily benefits because it obtains foreign workers where the
employer has demonstrated that there are not sufficient qualified U.S.
workers available to perform the work; the employer has demonstrated
that unavailability by engaging in prescribed recruiting activities
that do not yield sufficient U.S. workers.
The CW-1 workers, on the other hand, only receive the right to work
for a particular employer, in a particular location, and for a
particular period of time. If they leave that specific job, they
generally must leave the country. Transporting these CW-1 workers from
remote locations to the workplace thus primarily benefits the employer
who has sought authority to fill its workforce needs by bringing in
workers from foreign countries. Similarly, because a CW-1 worker's visa
(including all the related expenses, which vary by country, including
the visa processing interview fee and border crossing fee) is an
incident of and necessary to employment under the program, the employer
is the primary beneficiary of such expenses. The visa does not allow
the employee to find work in the United States generally, but rather
permits the visa holder to apply for admission in CW-1 nonimmigrant
status in the CNMI, which restricts the worker to the employer with an
approved TLC and petition to the particular approved work described in
the employer's application.
In addition, the FLSA applies independently of the CW-1
requirements and imposes obligations on employers regarding payment of
wages. Employers covered by the FLSA must generally pay such expenses
to nonexempt employees in the first workweek, to the level necessary to
meet the FLSA minimum wage. See, e.g., Rivera v. Peri & Sons Farms,
Inc., 735 F.3d 892, 898-99 (9th Cir. 2013); Arriaga v. Florida Pacific
Farms, LLC, 305 F.3d 1228 (11th Cir. 2002); Morante-Navarro v. T&Y Pine
Straw, Inc., 350 F.3d 1163 (11th Cir. 2003); Gaxiola v. Williams
Seafood of Arapahoe, Inc., 2011 WL 806792 (E.D.N.C. 2011); Teoba v.
Trugreen Landcare LLC, 2011 WL 573572 (W.D.N.Y. 2011); DeLeon-Granados
v. Eller & Sons Trees, Inc., 581 F. Supp. 2d 1295 (N.D. Ga. 2008);
Rosales v. Hispanic Employee Leasing Program, 2008 WL 363479 (W.D.
Mich. 2008); Rivera v. Brickman Group, 2008 WL 81570 (E.D. Pa. 2008).
But see Castellanos-Contreras v. Decatur Hotels, LLC, 622 F.3d 393 (5th
Cir. 2010) (en banc). Payment sufficient to satisfy the FLSA in the
first workweek is also required because Sec. 655.423(w) specifically
requires employers to comply with all applicable Federal and
Commonwealth employment-related laws and regulations, including health
and safety laws. Furthermore, because U.S. workers are entitled to
receive at least the same terms and conditions of employment as CW-1
workers, in order to prevent adverse effects on U.S. workers from the
presence of foreign workers, employers must provide the same
reimbursement for U.S. workers in corresponding employment who are
unable to return to their residence each workday, such as those from
another U.S. State or territory who saw the position advertised on the
CNMI Department of Labor's job listing system.
The Department has determined these provisions fulfill its
statutory mandate to protect U.S. workers from adverse effects due to
the presence of temporary foreign workers. As discussed above, under
the FLSA, numerous courts have held in the context of both H-2B and H-
2A workers that the inbound and outbound transportation costs
associated with employing workers are an inevitable and inescapable
consequence of employers choosing to participate in these visa
programs. Moreover, the courts have held that such transportation
expenses are not ordinary living expenses, because they have no
substantial value to the employee independent of the job and do not
ordinarily arise in an employment relationship, unlike normal daily
home-to-work commuting costs.
Therefore, the courts view employers as the primary beneficiaries
of such expenses under the FLSA; in essence the courts have held that
inbound and outbound transportation are employer business expenses. A
similar analysis applies to the CW-1 required wage. This requirement
ensures the integrity of the full CW-1 required wage, over the full
term of employment. Both CW-1 workers and U.S. workers in corresponding
employment will receive the CW-1 required wage they were promised, as
well as reimbursement for the reasonable transportation and subsistence
costs that primarily benefit the employer, over the full period of
employment.
Finally, to comply with the provisions of this section,
transportation must be reimbursed from wherever the place from which
the worker has come to
[[Page 12401]]
work for the employer to the place of employment; therefore, the
employer must pay for transportation from the place of recruitment to
the city with the consulate that adjudicates the worker's visa
application and then on to the place of employment. Similarly, the
employer must pay for subsistence during that period, so if an
overnight stay at a hotel in the consular city is required while the
employee is interviewing for and obtaining a visa, that subsistence
must be reimbursed.
k. Paragraph (k), Employer-Provided Items
Consistent with the requirement under the FLSA regulations at 29
CFR part 531, paragraph (k) of this section requires the employer
provide to the worker, without charge or deposit charge, all tools,
supplies, and equipment required to perform the duties assigned. The
employer may not shift to the employee the burden to pay for damage to,
loss of, or normal wear and tear of, such items. This provision gives
workers additional protections against improper deductions for the
employer's business expenses from required wages.
Section 3(m) of the FLSA (29 U.S.C. 203(m)) prohibits employers
from making deductions for items that are primarily for the benefit of
the employer if such deductions reduce the employee's wage below the
Federal minimum wage. Therefore, an employer that does not provide
tools but requires its employees to bring their own would already be
required under the FLSA to reimburse its employees for the difference
between the weekly wage minus the cost of equipment and the weekly
minimum wage. Paragraph (k) simply extends this protection in a manner
that protects the integrity of the required CW-1 wage rate and thereby
avoids adverse effects on the wages of U.S. workers. However, this
requirement does not prohibit employees from voluntarily choosing to
use their own specialized equipment; rather, it simply requires
employers to make available to employees adequate and appropriate
equipment.
l. Paragraph (l), Disclosure of Work Contract
Paragraph (l) of this section requires the employer to provide a
copy of the work contract, including any subsequent approved
modifications, to a CW-1 worker outside of the United States no later
than the time at which the worker applies for the visa, or to a worker
in corresponding employment no later than on the day work commences. To
clarify, the time at which the worker applies for the visa should be
read as the time before the worker has made any payment, whether to a
recruiter or directly to the consulate, to initiate the visa
application process. The Department has concluded that it is most
practical to require disclosure of the work contract at the time the
worker applies for a visa, to ensure that workers fully understand the
terms and conditions of their job offer before they make a commitment
to come to the United States.
For CW-1 workers who are moving to a subsequent CW-1 employer, the
work contract must be provided no later than the time the subsequent
offer of employment is made. At a minimum, the work contract must
contain all of the provisions required to be included by this section
and must be in a language understood by the worker. In the absence of a
separate, written work contract between the employer and the worker,
the required terms of the certified CW-1 Application for Temporary
Employment Certification are those in the work contract.
The Department has determined that the disclosure required by this
paragraph is a vital component of strengthening program compliance and
provides workers with sufficient notice of the terms and conditions of
the job so that they can make an informed decision of the terms under
which they are accepting the job. In addition, providing the terms and
conditions of employment to each worker in a language that the
individual understands protects those workers.
m. Paragraph (m), No Unfair Treatment
To protect vulnerable U.S. workers and CW-1 workers, paragraph (m)
of this section provides nondiscrimination and nonretaliation
protections for workers. Workers are protected from retaliation,
including retaliation based on contact or consultation with an employee
of a legal assistance program, labor union, workers' center, or
community organization, or an attorney on matters related to perceived
violations. These entities frequently have the first contact with
temporary foreign workers when they seek help to correct or report
perceived violations. This provision applies to oral complaints and
complaints made internally to employers, and it also applies to
current, former, and prospective workers.
This provision protects workers from discrimination and retaliation
for asserting rights under any applicable Federal or Commonwealth law
or regulation, including the CW-1 program. For example, if workers
sought legal assistance relating to the terms and conditions of
employment, such as employer-provided housing because an employer
charged for housing that was listed as free of charge in the work
contract, this serves as a protected act; however, a routine landlord-
tenant dispute may not fall under the protections of this section. This
section provides protection to U.S. workers and CW-1 workers alike.
n. Paragraph (n), Comply With the Prohibitions Against Employees Paying
Fees
Paragraph (n), similarly to the Department's H-2B regulation at 20
CFR 655.20(o), of this section prohibits the employer and its
attorneys, agents, or employees from seeking or receiving payment of
any kind from workers for any activity related to obtaining CW-1 labor
certification or employment, including payment of the employer's
attorney or agent fees, application and CW-1 Petition fees, recruitment
costs, or any fees attributed to obtaining the approved CW-1
Application for Temporary Employment Certification. Payments under this
provision include but are not limited to monetary payments, wage
concessions (including deductions from wages, salary, or benefits),
kickbacks, bribes, tributes, in-kind payments, and free labor. However,
this provision allows employers and their agents to receive
reimbursement for fees that are primarily for the benefit of the
worker, such as Government-required passport fees, which can be used
for personal travel or for travel to another job. This provision also
reiterates that employers must pay all wages to workers free and clear.
Paragraph (o), Contracts with Third Parties to Comply with
Prohibitions.
Paragraph (o) of this section requires that an employer
contractually prohibit in writing any agent or recruiter (or any agent
or employee of such agent or recruiter) whom the employer engages,
either directly or indirectly, in recruitment of CW-1 workers to seek
or receive payments or other compensation from prospective workers. For
employers' convenience, this paragraph contains the exact language of
the required contractual prohibition that must appear in such
agreements.
o. Paragraph (p), Prohibition Against Preferential Treatment of Foreign
Workers
For the protection of U.S. workers, paragraph (p) of this section
requires the employer to offer and provide to U.S. workers no less than
the same benefits, wages, and working conditions that the
[[Page 12402]]
employer is offering, intends to offer, or will provide to CW-1
workers. Job offers may not impose on U.S. workers any restrictions or
obligations that will not be imposed on the employer's CW-1 workers.
Employers are required to offer and provide CW-1 workers at least the
minimum benefits, wages, and working conditions outlined in this
paragraph. This provision will protect U.S. workers by ensuring that
employers do not understate wages and/or benefits in an attempt to
discourage U.S. applicants or to provide preferential treatment to
temporary foreign workers.
The employer is not precluded from offering a higher wage rate or
more generous benefits or working conditions to U.S. workers, so long
as the employer offers to U.S. workers all the wages, benefits, and
working conditions offered to and required for CW-1 workers pursuant to
the certified CW-1 Application for Temporary Employment Certification.
p. Paragraph (q), Nondiscriminatory Hiring Practices
For the protection of U.S. workers, paragraph (q) of this section
sets forth a nondiscriminatory hiring provision by guaranteeing the job
opportunity is open to any qualified U.S. worker regardless of race,
color, national origin, age, sex, religion, disability, or citizenship.
This paragraph works together with paragraph (p) of this same section,
which specifies that job qualifications and requirements imposed on
U.S. workers must be no less favorable than the qualifications and
requirements that the employer is imposing or will impose on CW-1
workers. Thus, for example, an employer violates this provision if it
requires drug tests or criminal background checks for U.S. workers but
not for CW-1 workers.
Additionally, where an employer conducts criminal background checks
on prospective employees, in order to be lawful and job-related, the
employer's consideration of any arrest or conviction history must be
consistent with applicable guidance from the Equal Employment
Opportunity Commission on employer consideration of arrest and
conviction history under Title VII of the Civil Rights Act of 1964.
Thus, employers may reject U.S. workers solely for lawful, job-related
reasons, and they must also comply with all applicable employment-
related laws, as set forth under Sec. 655.423(w). All U.S. workers not
rejected on this basis must be hired. This paragraph also reminds the
employer of its obligation to retain records of all hired workers as
well as those rejected, as set forth under Sec. 655.456.
q. Paragraph (r), Recruitment Requirements
Paragraph (r) of this section requires employers to assure the
Department that they will conduct all recruitment for U.S. workers
required by Sec. Sec. 655.440 through 655.445, including any
activities directed by the CO. Such required recruitment activities are
discussed further in the preamble to those applicable sections.
r. Paragraph (s), No Strike or Lockout
Paragraph (s) of this section requires an employer to assure the
Department that there is no strike or lockout at any of the employer's
place(s) of employment within the Commonwealth for which the employer
is requesting CW-1 certification. If there is a strike or lockout at
the place(s) of employment when the employer requests CW-1 workers, the
CO may deny the CW-1 certification to ensure that U.S. workers are not
adversely impacted by the hiring of a CW-1 worker(s). This provision
will protect U.S. workers in their employment by preventing employers
from filling positions with CW-1 workers at places of employment where
such positions are vacated by U.S. workers due to a strike or
lockout.\41\
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\41\ This provision is consistent with the H-2B provisions at 20
CFR 655.20(u).
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s. Paragraph (t), No Recent or Future Layoffs
Paragraph (t) of this section establishes the standards under which
an employer cannot lay off similarly employed U.S. workers who would be
considered in corresponding employment upon approval of a TLC.
Specifically, the employer must assure the Department that it has not
laid off any similarly employed U.S. worker in the occupation that is
the subject of the CW-1 Application for Temporary Employment
Certification in the Commonwealth within the period beginning 270
calendar days before the date of need and will not lay off any
similarly employed U.S. worker in the occupation that is subject to the
CW-1 Application for Temporary Employment Certification in the
Commonwealth through the end of the period of certification. However,
the provision specifically permits layoffs due to lawful, job-related
reasons, such as lack of work or the end of a season, as long as, if
applicable, the employer lays off its CW-1 workers first before any
U.S. worker in corresponding employment.
The Department has determined that the 270-day period before the
date of need is an appropriate timeframe to prohibit layoffs of
similarly employed U.S. workers, because it represents the earliest
possible period the employer may request a PWD from the NPWC for a job
opportunity that it may seek to fill with a nonimmigrant worker in CW-1
status. By extending this prohibition through the end of the certified
period of employment, the Department is seeking to maximize the
protection of U.S. workers in their employment and discourage employers
from seeking to use the CW-1 program to displace their current U.S.
workforce.
t. Paragraph (u), No Work Performed Outside the Commonwealth and Job
Opportunity
Paragraph (u) of this section helps ensure integrity of the CW-1
program by prohibiting the employer from placing any CW-1 workers
outside the Commonwealth or in a job opportunity not listed on the
approved CW-1 Application for Temporary Employment Certification. The
requirement that all work must be performed within the Commonwealth is
consistent with the statutory mandate prohibiting individuals in CW-1
status from being present anywhere in the United States other than the
Commonwealth, with limited exception. Furthermore, placing CW-1 workers
to perform labor or services outside the scope of the job opportunity
certified by the CO can depress the wages of similarly employed U.S.
workers and undermines the labor market test upon which the CO granted
TLC.
u. Paragraph (v), Abandonment/Termination of Employment
Paragraph (v) of this section requires the employer to notify OFLC
within 2 working days of the separation of a CW-1 worker or worker in
corresponding employment if the separation occurs before the end date
of the period of employment certified in the CW-1 Application for
Temporary Employment Certification. It also deems that an abandonment
or abscondment begins after a worker fails to report for work at the
regularly scheduled time without the employer's consent for 5
consecutive working days, and adds language relieving the employer of
the subsequent transportation and subsistence requirements, previously
discussed under Sec. 655.423(j), only where the separation is due to a
worker's voluntary abandonment or termination for cause. Additionally,
the section clarifies that if a worker voluntarily abandons employment
or is terminated for cause, and appropriate notification under this
section is provided, an employer is not required to guarantee three-
fourths of the work
[[Page 12403]]
contract, as previously discussed under Sec. 655.423(f).\42\
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\42\ This provision is consistent with H-2B program requirements
at 20 CFR 655.20(y).
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OFLC's awareness of early separations is critical to program
integrity, and timely notification of CW-1 workers who voluntarily
abandon employment is likewise vital to identifying workers who are no
longer covered by an approved temporary labor certification and no
longer have a legal purpose for being in the CNMI. Timely notification
also allows the agency to conduct audit examinations or refer matters
for further investigation to DHS or any other Federal Government
Office. Absent proper notification, employers with histories of
frequent and unjustified early dismissals of workers could continue to
have their CW-1 Applications for Temporary Employment Certification
certified and a CW-1 Petitions approved.
v. Paragraph (w), Compliance With Applicable Laws
During the period of employment certified by the CO on the CW-1
Application for Temporary Employment Certification, paragraph (w) of
this section requires CW-1 employers to comply with all applicable
Federal and Commonwealth employment and labor laws and regulations,
including health and safety laws. It also explicitly references 18
U.S.C. 1592(a), which prohibits holding or confiscating workers'
immigration documents, such as passports or visas, under certain
circumstances.
D. Processing of an CW-1 Application for Temporary Employment
Certification
1. Section 655.430, Review of Applications
This section establishes requirements for the CO to review CW-1
Applications for Temporary Employment Certification, methods of
communication between the CO and employer, and authority for the CO to
share information with other Federal Government Officials performing
enforcement and/or investigative activities.
Paragraph (a) requires the CO to conduct a comprehensive review of
the CW-1 Application for Temporary Employment Certification, including
all applicable addenda and supporting documentation, for compliance
with all applicable program requirements. After performing a review,
the CO will provide written notification to the employer and, if
applicable, to the employer's agent or attorney indicating whether the
CW-1 Application for Temporary Employment Certification can be accepted
for further processing. If the CO determines all applicable program
requirements have been met, a NOA authorizing the recruitment of U.S.
workers in the CNMI will be issued, as required by Sec. 655.433.
However, if the CO determines the CW-1 Application for Temporary
Employment Certification contains one or more deficiencies, a NOD will
be issued, as required by Sec. 655.431, requiring a response from the
employer addressing each deficiency before a NOA can be issued.
To ensure communications between the CO and employer are
accomplished in a reliable and efficient manner, paragraph (b) of this
section requires the CO to send all notices or requests to the employer
electronically or using first class U.S. Mail based on address
information supplied by the employer on the CW-1 Application for
Temporary Employment Certification. Similarly, the employer's response
to a notice or request received from the CO must be sent electronically
or via traditional methods that assure expedited delivery. If the due
date for the employer's response falls on a Saturday, Sunday or Federal
Holiday, this paragraph requires the employer to send the response by
the date due or the next business day.
To ensure program integrity and effective coordination with other
Federal Government Officials, and consistent with how the Department
administers other TLC programs, paragraph (c) provides that OFLC may
forward to DHS or any other Federal Government Official performing an
investigation, inspection, audit, or law enforcement function, the
information that OFLC receives in the course of processing a request
for an CW-1 Application for Temporary Employment Certification or of
administering program integrity measures such as audits under this
subpart.
2. Section 655.431, Notice of Deficiency
This section establishes the procedures under which the CO will
issue a NOD after reviewing the employer's CW-1 Application for
Temporary Employment Certification. The purpose of the NOD is to
provide employers, especially those participating in the CW-1 program
for the first time, an opportunity to comply with program requirements
before a denial determination needs to be issued by the CO, thereby
avoiding a burdensome and costly administrative judicial review
process. Thus, paragraph (a) provides that a NOD will be issued to the
employer where the CO determines the CW-1 Application for Temporary
Employment Certification, including the material terms and conditions
of the job offer, contains errors or inaccuracies, or fails to comply
with applicable requirements set forth in this subpart. A copy of the
NOD will be sent to the employer's agent or attorney, as applicable.
Paragraph (b) of this section specifies the content requirements of
the NOD. The NOD will include the specific reason(s) the CW-1
Application for Temporary Employment Certification fails to meet the
criteria for acceptance and will identify the type(s) of response(s) or
modification(s) needed for the CO to issue a NOA. The employer will be
offered an opportunity to submit a modified CW-1 Application for
Temporary Employment Certification within 10 business days from the
date of the NOD addressing each deficiency noted by the CO. Finally,
the NOD will state that if the employer does not submit a modified CW-1
Application for Temporary Employment Certification, in accordance with
the standards and procedures set forth under Sec. 655.432, the CO will
deny the CW-1 Application for Temporary Employment Certification.
Based on the Department's experience administering other TLC
programs, there are circumstances in which the modified CW-1
Application for Temporary Employment Certification submitted by the
employer does not resolve the stated deficiency or creates a question
or concern requiring additional clarification before a NOA can be
issued. Therefore, as Sec. 655.432(a) provides, the CO may issue one
or more NODs, as necessary, to work with employers to resolve
deficiencies that are preventing acceptance of their CW-1 Application
for Temporary Employment Certification and achieve program compliance.
3. Section 655.432, Submission of Modified Applications
This section establishes the procedures under which the CO will
handle responses to a NOD, including any modifications to the CW-1
Application for Temporary Employment Certification, submitted by an
employer as well as other necessary modifications requested by the CO
before a final determination is issued. Upon receipt of a response to a
NOD, including any modifications to the CW-1 Application for Temporary
Employment Certification, paragraph (a) specifies the CO will review
the response and may issue one or more additional NODs to ensure
compliance with regulatory
[[Page 12404]]
requirements before issuing a decision under this section. However, an
employer's failure to comply with a NOD, including not responding in a
timely manner or not providing all required documentation requested by
the CO, will result in a denial of the CW-1 Application for Temporary
Employment Certification.
If the CO accepts the response submitted by the employer, paragraph
(b) provides that the CO will issue a NOA. In the NOA, the CO directs
the employer to conduct recruitment of U.S. workers for the job
opportunity, in accordance with the procedures and requirements set
forth under Sec. 655.433. If the modified application fails to cure
the deficiencies or otherwise comply with program requirements, and the
CO finds the employer's response to the NOD unacceptable, paragraphs
(c) and (d) provide that the CO will deny the CW-1 Application for
Temporary Employment Certification, and offer the employer an
opportunity to request administrative judicial review of the denial, in
accordance with the procedures set forth under Sec. 655.461.
Notwithstanding the decision to accept the CW-1 Application for
Temporary Employment Certification, paragraph (e) of this section
authorizes the CO to require additional modifications where the CO
determines the job offer identified in the CW-1 Application for
Temporary Employment Certification does not contain all the minimum
benefits, wages, and working conditions specified under Sec. 655.441.
The CO's ability to require modification(s) of a job offer strengthens
CW-1 program integrity. In some cases, information may come to the CO's
attention after acceptance indicating that the job offer does not
contain all the applicable minimum benefits, wages, and working
conditions that are required for certification. This provision enables
the CO to ensure that the job offer meets all regulatory requirements
before a decision to grant TLC is issued.
The CO may request additional modifications at any time after the
NOA is issued and before the CO makes the final determination to grant
or deny the CW-1 Application for Temporary Employment Certification.
The employer must make the requested modifications, or the CO will deny
the TLC in accordance with the procedures set forth under Sec.
655.453. Once all requested modifications are made and approved by the
CO, paragraph (e) requires that the employer provide to all workers
recruited in connection with the job opportunity a copy of the modified
CW-1 Application for Temporary Employment Certification no later than
the date work commences.
4. Section 655.433, Notice of Acceptance
This section establishes the procedures under which the CO will
issue a NOA after reviewing the employer's CW-1 Application for
Temporary Employment Certification. The purpose of the NOA is to
provide the employer with specific instructions on where to conduct
recruitment in the CNMI and the length of time advertisements for the
job opportunity must appear to prospective U.S. workers. Paragraph (a)
provides that a NOA will be issued to the employer where the CO
determines the CW-1 Application for Temporary Employment Certification,
including the material terms and conditions of the job offer, contains
no errors or inaccuracies, and meets the requirements set forth in this
subpart. A copy of the NOA will be sent to the employer's agent or
attorney, as applicable.
Paragraph (b) of this section specifies the content requirements of
the NOA. The NOA will direct the employer to recruit for U.S. workers
by placing an advertisement on the CNMI Department of Labor's job
listing system, as further explained under Sec. 655.442; contacting
its former U.S. employees employed during the previous year and
soliciting their return to the jobs, as further explained under Sec.
655.443; and posting notice of the job opportunity in at least two
conspicuous locations at the place(s) of employment, as further
explained under Sec. 655.444. Additionally, the NOA may contain
instructions for the employer to conduct additional recruitment where
the CO determines qualified U.S. workers will be available for the
work, as further explained under Sec. 655.445.
To ensure employers initiate recruitment in a timely manner, the
NOA will require all employer-conducted recruitment to begin within 14
calendar days from the date the NOA is issued. Finally, in the NOA the
CO will require the employer to submit a report of its recruitment
efforts by a specific date, as further explained under Sec. 655.446,
for the CO to determine whether there is a sufficient number of
qualified U.S. workers in the CNMI who will be available for the
employer's job opportunity.
5. Section 655.434, Amendments to an Application
This section establishes the standards and procedures under which
the employer may request to amend its CW-1 Application for Temporary
Employment Certification to increase the number of workers requested,
modify the period of employment, and/or request other minor changes to
the application. All amendment requests must be made in writing and
before a certification determination is issued on the employer's CW-1
Application for Temporary Employment Certification and will not be
effective until approved by the CO.
Paragraph (a) permits the employer to request a minor amendment to
increase the number of workers requested in the initial CW-1
Application for Temporary Employment Certification. The employer may
request an increase of not more than 20 percent (50 percent for
employers requesting less than 10 workers) of the number of workers
requested on the initial application without requiring an additional
recruitment period for U.S. workers. Requests for increases above the
prescribed percentages, which are similar to other TLC programs \43\
administered by the Department, may be approved without additional
recruitment only when the employer demonstrates that the need for
additional workers could not have been foreseen and is wholly outside
of the employer's control.
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\43\ The H-2B provisions may be found at 20 CFR 655.35. The H-2A
provisions may be found at 20 CFR 655.145.
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Paragraph (b) permits the employer to request minor changes in the
total period of employment in the initial CW-1 Application for
Temporary Employment Certification. The employer may request an
amendment of not more than 14 calendar days to the total period of
employment without requiring an additional recruitment period for U.S.
workers. Requests for minor changes to the period of employment must be
in writing and may be approved by the CO only when the employer
demonstrates that the need for such changes could not have been
foreseen and is wholly outside of the employer's control. To ensure
amendments to the period of employment are approved in a manner
consistent with the statute, the CO will deny any request to change the
period of employment where the total amended period of employment will
exceed the maximum applicable duration permitted under Sec.
655.420(g). Additionally, the Department does not intend for employers
to use this provision to amend their dates of need in order to gain a
competitive advantage with respect to accessing the USCIS-administered
CW-1 visa cap. Therefore, the Department will not approve cap-
[[Page 12405]]
related amendment requests on the CW-1 Application for Temporary
Employment Certification.
Paragraph (c) permits the employer to request other minor changes
to the initial CW-1 Application for Temporary Employment Certification
before the CO's certification determination is issued. After reviewing
an employer's request to amend its CW-1 Application for Temporary
Employment Certification, the CO will approve these changes if the CO
determines the proposed amendment(s) are justified after review of
pertinent information, including what effect, if any, the proposed
amendments have on the underlying labor market test in the CNMI for
U.S. workers.
This provision provides clarity to employers and workers alike of
the limitations on and processes for amending a CW-1 Application for
Temporary Employment Certification and the need to inform any U.S.
workers already recruited of the changed job opportunity. For any
amendments approved by the CO under this section, the employer is
required to promptly provide copies of any approved amendments to all
U.S. workers recruited and hired under the original job offer. These
provisions also recognize that business operations are dynamic and
employers can face changed circumstances from varying sources--from
climatic conditions to cancelled contracts. Accordingly, the Department
includes these provisions to provide a limited degree of flexibility to
enable employers to assess and respond to such changes. However, as
provided for in paragraph (d) of this section, these provisions permit
an employer to seek such amendments only prior to the CO issuing a
determination to certify the CW-1 Application for Temporary Employment
Certification, not after certification.
E. Post-Acceptance Requirements
1. Section 655.440, Employer-Conducted Recruitment
This section establishes the requirements for employers to conduct
recruitment for U.S. workers in the CNMI and provides that such
recruitment may occur only after the employer files a CW-1 Application
for Temporary Employment Certification and receives a NOA from the CO.
To carry out the statutory requirement that certifications be granted
only if no U.S. workers are available, paragraph (a) contains the
general requirement that employers must conduct recruitment in the CNMI
to ensure that there are not able and qualified U.S. workers who will
be available for the positions listed in the CW-1 Application for
Temporary Employment Certification. The requirement that employers
seeking TLC conduct a thorough test of the CNMI labor market is an
essential requirement to ensure that the importation of foreign workers
will not have an adverse effect on U.S. workers.
Paragraph (b) requires that the employer begin specific recruitment
steps outlined in Sec. Sec. 655.442 through 655.445 within 14 calendar
days from the date the NOA is issued, unless the CO provides different
instructions to the employer in the NOA. This requirement provides the
employer with time to initiate all recruitment steps and ensures all
advertisements and notices of the job opportunities appear to
prospective U.S. workers in the same time period. To ensure U.S.
workers are fully considered for the job opportunities, this paragraph
also requires that all employer-conducted recruitment be completed
before the employer submits the recruitment report to the CO as
specified in the NOA and required in Sec. 655.446.
Where the employer desires to conduct interviews with U.S. workers
for the job opportunity, paragraph (c) requires that such interviews
with U.S. workers be done by telephone or at a location where workers
can participate at little or no cost to the workers. This provision
does not require employers to conduct employment interviews under this
provision. Rather, where employers choose to conduct interviews,
employers are barred from offering preferential treatment to potential
CW-1 workers, including any requirement to interview for the job
opportunity. In addition, this provision ensures that employers conduct
a fair labor market test by requiring employers to conduct those
interviews by phone or provide a procedure for the interviews to be
conducted in the location where the worker is being recruited so that
the worker incurs little or no cost. Accordingly, an employer who
requires a U.S. worker to undergo an interview must provide such worker
with a reasonable opportunity to meet such a requirement. The purpose
of these requirements is to ensure that the employer does not use the
interview process to the disadvantage of U.S. workers.
To ensure no adverse effect to U.S. workers, paragraph (d) requires
the employer to consider all U.S. applicants interested in the
position, and hire all U.S. applicants who are qualified and who will
be available for the job opportunity. This paragraph further provides
that U.S. applicants can be rejected only for lawful, job-related
reasons, and those not rejected on this basis will be hired by the
employer.
And finally, in order for the CO to issue a final determination on
the CW-1 Application for Temporary Employment Certification, paragraph
(e) requires the employer to prepare and submit a written report of its
recruitment activities, in accordance with the requirements set forth
under Sec. 655.446.
2. Section 655.441, Job Offer Assurances and Advertising Contents
This section establishes the standards and minimum content
requirements for an employer to advertise the job opportunity to U.S.
workers for employment in the CNMI. The job offer is essential for U.S.
workers to make informed employment decisions. The job offer serves to
apprise U.S. workers of the available job opportunity and, further,
provides U.S. and CW-1 workers with the material terms and conditions
of employment under this program. To apprise both U.S. and CW-1
workers, it must include not only standard information about the job
opportunity, including wage information to avoid any U.S. worker wage
depression, but also key assurances to which the employer is committed
by filing an CW-1 Application for Temporary Employment Certification to
employ CW-1 workers and to which U.S. workers are also entitled.
Accordingly, paragraph (a) provides that all recruitment contain terms
and conditions of employment that are not less favorable than those
offered to the CW-1 workers and comply with the assurances applicable
to job offers, as set forth in Sec. 655.423.
Paragraph (b) provides a list of the minimum terms and conditions
of employment that must be included in all advertising, including a
requirement that the employer make the appropriate disclosure when it
is offering or providing board, lodging or other facilities, as well as
identify any deductions not required by law, if applicable, that will
be applied to the employee's pay for the provision of such
accommodations. The terms and conditions of employment, as well as the
required disclosures, serve to inform U.S. workers of the available job
opportunity. In requiring that advertisements comply with minimum
content requirements, but not requiring that advertisements contain all
the text of the applicable regulatory assurances associated with these
terms and conditions of employment under Sec. 655.423, the Department
is striking an appropriate balance between the
[[Page 12406]]
employer's cost in placing potentially lengthy advertisements and the
need to ensure consistent disclosure of all necessary information to
prospective U.S. workers. In addition, as a continuing practice in
other TLC programs administered by the Department, employers will be
able to use abbreviations in the advertisements so long as they clearly
and accurately capture the underlying content requirement.
In order to help employers comply with these requirements, the
Department provides specific language which is sufficient on the
material terms and conditions of employment related to transportation;
the three-fourths guarantee; availability of overtime; availability of
on-the-job training; and tools, equipment, and supplies to apprise U.S.
applicants of those required items in the advertisement. As provided
above, the employer may abbreviate some of this language so long as the
underlying guarantee is clearly stated for U.S. workers and can be
clearly understood by a prospective applicant. To apprise U.S. workers
of the available job opportunity, the following statements in an
employer's advertisements are permitted:
1. Transportation: Transportation (including meals and, to the
extent necessary, lodging) to the place of employment will be provided,
or its cost to workers reimbursed, if the worker completes half the
employment period. Return transportation will be provided if the worker
completes the employment period or is dismissed early by the employer.
2. Three-fourths guarantee: Employment will be offered for a total
number of work hours equal to at least three fourths of the workdays of
the total period of employment.
3. Availability of overtime: Overtime hours may be available and
will be paid at $__ per hour.
4. Availability of on-the-job training: Employer will provide on-
the-job training to perform the duties safely and effectively.
5. Tools, equipment, and supplies: Employer will provide workers at
no charge all tools, supplies, and equipment required to perform the
job.
To afford U.S. workers access to available job opportunities, this
paragraph also requires all advertisements include the name and contact
information of the employer, and a statement directing applicants to
apply for the job with the employer using two verifiable methods, one
of which must be electronic, and the time applicants will be considered
for the job opportunity. Contact information of the employer must be a
person employed by the employer with authority to consider U.S. workers
who apply for the job opportunity. Electronic methods by which
applicants may apply for the job can include a telephone number,
electronic mail address, or website where applications or resumes can
be submitted for the specific job opportunity. At any time during the
processing of a CW-1 Application for Temporary Employment Certification
or a post-certification audit examination, the CO has the authority to
verify the methods by which applicants apply for the job opportunity to
ensure each is bona fide.
3. Section 655.442, Place Advertisement With CNMI Department of Labor
This section requires the employer to place an advertisement with
the CNMI Department of Labor. Specifically, paragraph (a) requires the
employer to place an advertisement with the CNMI Department of Labor
that satisfies the requirements set forth in Sec. 655.441 and remains
open to prospective U.S. workers for 21 consecutive calendar days,
which is similar to the H-2B program. Also similar to other TLC
programs,\44\ the advertisement must be sufficient under Sec. 655.441
to ensure that the advertisement informs U.S. workers of the employer's
available job opportunity and to ensure that U.S. workers are not
placed at a competitive disadvantage. Further, the advertisement
provides the means by which U.S. workers will contact employers for the
available job opportunity. The employer's job qualifications and
requirements imposed on U.S. workers must be no less favorable than the
qualifications and requirements that the employer is imposing or will
impose on CW-1 workers.
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\44\ 20 CFR 655.41; 20 CFR 655.18; 20 CFR 655.151; 20 CFR
655.122.
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The CNMI Department of Labor is the government agency responsible
for providing employment and training services, and maintaining an
electronic system for registered and approved employers to post job
vacancy announcements and receive referrals of qualified U.S. workers
in the CNMI. Registration for employers to post vacancy announcements
on the job listing system is a one-time, free process, and readily
accessible through the CNMI Department of Labor's website. Consistent
with the requirements in other TLC programs \45\ for employers to place
job orders with SWAs, the Department has concluded that the requirement
for employers to place an advertisement with the CNMI Department of
Labor represents a reliable method of recruitment for the job
opportunity with a capacity to reach a large number of prospective U.S.
workers in the CNMI.
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\45\ 20 CFR part 655, subpart A; 20 CFR part 655, subpart B.
---------------------------------------------------------------------------
Paragraph (b) also requires the employer to maintain documentation
that the advertisement was placed with the CNMI Department of Labor to
establish compliance with the requirements of this section. The
employer's documentation must include printouts of web pages in which
the advertisement appeared on the CNMI Department of Labor job listing
system, or other verifiable evidence from the CNMI Department of Labor
containing the text of the advertisement. The documentation must also
clearly show the dates on which the advertisement appeared on the CNMI
Department of Labor's job listing system in order to establish
compliance with the 21-day recruitment period. The Department reminds
employers that the CO may request this documentation during the course
of processing the CW-1 Application for Temporary Employment
Certification or a post-certification audit examination.
4. Section 655.443, Contact With Former U.S. Workers
This section requires the employer to make reasonable efforts to
contact by mail or other effective means its former U.S. workers,
including those who were laid off within 270 calendar days before the
date of need listed in the CW-1 Application for Temporary Employment
Certification, employed by the employer in the occupation and at the
places of employment listed in the application during the previous year
to solicit their return to the job. However, employers are not required
to contact U.S. workers who were dismissed for cause or who abandoned
the places of employment. The dismissal-for-cause exception does not
apply to workers improperly fired in retaliation for their exercise of
rights protected under the program. The Department has concluded that
this provision will help ensure that the greatest number of U.S.
workers, particularly those who have previously held these positions,
have awareness of and access to these job opportunities.
Each employer must provide its former U.S. workers with a full
disclosure of the material terms and conditions of the job offer and
solicit the U.S. workers' return to the job. This contact must occur
during the period of time that the job offer is being advertised on the
CNMI Department of
[[Page 12407]]
Labor's job listing system, and the employer must maintain
documentation sufficient to prove such contact in the event of an
investigation, inspection, audit, or law enforcement function performed
by the Department, DHS, or any Federal Government Official. This
documentation may consist of a dated copy of a form letter or other
written notification sent to all former U.S. workers, along with
evidence of its transmission (postage account, address list, etc.).
The Department recognizes that collective bargaining agreements may
exist between employers and workers and contain requirements for the
employer to contact laid-off workers in accordance with specific terms
governing recall and a recall period. The requirement in this section
that the employer contact former U.S. workers employed by the employer
during the 270 calendar days before the date of need would not
substitute for the terms in a collective bargaining agreement. The
employer is separately obligated to comply with the terms and
conditions of the bargaining agreement, which may include recall
provisions that cover workers employed by the employer beyond the 270
calendar day period.
5. Section 655.444, Notice of Posting Requirement
Consistent with the Department's TLC programs, for the protection
of U.S. workers, this section requires employers to post notice of the
job opportunity sufficient to apprise U.S. workers of the available
opportunity. For this notice requirement, the employer must post a copy
of the CW-1 Application for Temporary Employment Certification in at
least two conspicuous locations at all places of employment or in some
other manner that provides reasonable notification to all employees in
the job classification and area in which the work will be performed by
the CW-1 workers. The notice must be posted at all places of employment
for a period of 21 consecutive calendar days. Posting on a website may
fulfill this requirement in some circumstances.
The posting of the notice at the employer's place(s) of employment
is intended to provide notice that all the employer's U.S. workers are
afforded the same access to the job opportunities for which the
employer intends to hire CW-1 workers. In addition, the posting of the
notice may result in the sharing of information between the employer's
unionized and nonunionized workers and therefore result in more
referrals and a greater pool of qualified U.S. workers. This IFR
provides flexibility for complying with this requirement; specifically,
the regulation includes the language ``or in some other manner that
provides reasonable notification to all employees in the job
classification and area in which the work will be performed by the CW-1
workers.'' This permits the employer to devise an alternative method
for disseminating this information to the employer's U.S. workers, for
example, by posting the notice in the same manner and location as for
other notices, such as safety and health occupational notices, that the
employer is required by law to post. This provision further provides
that electronic posting, such as displaying the notice prominently on
any internal or external website that is maintained by the employer and
customarily used for notices to employees about terms and conditions of
employment, is sufficient to meet this posting requirement as long as
the posting otherwise meets the requirements of this section. Finally,
this section requires the employer maintain proof the CW-1 Application
for Temporary Employment Certification was posted and identify the
location(s) and the specific period of time on which the notice
appeared to U.S. workers, in accordance with Sec. 655.456.
6. Section 655.445, Additional Employer-Conducted Requirement
Where the CO determines that the employer-conducted recruitment
described in Sec. Sec. 655.442 through 655.444 is not sufficient to
attract qualified U.S. workers, this section provides the CO with
discretion to require the employer to engage in additional recruitment
activities. Paragraph (a) provides the CO with discretion to order
additional reasonable recruitment where the CO has determined that
there is a likelihood that U.S. workers who are qualified will be
available for the work. This discretion may be exercised where
additional recruitment efforts will likely result in more opportunities
for and a greater response from available and qualified U.S. workers.
The additional recruitment ordered by the CO under this section will be
conducted within the same time period as placement of the advertisement
with the CNMI Department of Labor and the other mandatory employer-
conducted recruitment described above.
Paragraph (b) provides that, if the CO elects to require additional
recruitment, the CO will describe the number and type of additional
recruitment efforts required. This paragraph also provides a
nonexhaustive list of the types of additional recruitment that may be
required by the CO, including advertising on the employer's website or
another website, with community-based organizations, local unions or
trade unions, or via a professional, trade, or other publication where
such a publication is appropriate for the workers likely to apply for
the job opportunity. When assessing the appropriateness of a particular
recruitment method, the CO will take into consideration all options at
her/his disposal, and will consider both the cost and the likelihood
that the additional recruitment will identify qualified and available
U.S. workers, and will, where appropriate, opt for the least burdensome
method(s).
The Department recognizes that the increased rate of technological
innovation, including its implications for communication of information
about job opportunities, is changing the way many U.S. workers search
for and find jobs. In part due to these changes, the inclusion of this
requirement is intended to allow the CO flexibility to keep pace with
the ever-changing labor market trends. To administer this provision
effectively, the Department intends to leverage its relationship with
the CNMI Department of Labor to obtain information on the primary
sources and methods of recruitment that are reasonable and most likely
to attract U.S. workers in the CNMI for those jobs employers who are
seeking CW-1 workers.
Paragraph (c) provides that, where the CO requires additional
recruitment, the CO will specify the documentation or other supporting
evidence that must be retained by the employer as proof that the
additional recruitment requirements were met, as required in Sec.
655.456.
7. Section 655.446, Recruitment Report
This section establishes the requirements that all employers must
meet in order for the CO to issue a final determination on the CW-1
Application for Temporary Employment Certification. Specifically,
paragraph (a) requires the employer to submit to the NPC a signed and
dated recruitment report, by the date specified in the NOA, which
accounts for its recruitment efforts for U.S. workers in the CNMI.
Where recruitment was conducted by a job contractor or its employer-
client, then both joint employers named in the CW-1 Application for
Temporary Employment Certification must sign the recruitment report, as
specified under Sec. 655.421(e)(1). To ensure all U.S. workers who
apply for the job are fully considered, paragraph (a) specifies that
the employer must not prepare, sign, and date the recruitment report
until 2 calendar days after the last date on which the last
advertisement appeared.
[[Page 12408]]
Except in circumstances where an employer may be required to do
assisted recruitment under Sec. 655.471, the last day on which the
last advertisement appears will generally be the 21st consecutive
calendar day of the recruitment period.
The minimum content recruitment report must contain, the name of
each recruitment activity or source, confirmation that each recruitment
step required by the CO in the NOA was completed and when, and the
results of the recruitment effort. The employer must provide the name
and contact information of each U.S. worker who applied or was referred
to the job opportunity as well as the disposition of each worker's
application. The employer must clearly indicate whether the job
opportunity was offered to each U.S. worker applicant and whether each
U.S. worker accepted or declined employment. This reporting allows the
Department to ensure the employer has met its recruitment obligations
whether there were insufficient U.S. workers who are able, qualified
and available to perform the job for which the employer seeks TLC. In
addition, the NPC may contact U.S. workers listed in the recruitment
report, either prior to issuing a final determination or during the
course of a post-certification audit examination, to verify the reasons
given by the employer as to why they were not hired, where applicable.
To ensure all U.S. applicants are considered for the job
opportunity and the outcome of each worker's application are recorded
timely and accurately, paragraph (b) of this section requires employers
to update the recruitment report throughout the recruitment period. In
a joint employment situation, either the job contractor or the
employer-client may update the recruitment report throughout the
recruitment period.
F. Labor Certification Determinations
1. Section 655.450, Determinations
This section generally authorizes the OFLC Administrator and NPC-
based COs, by virtue of delegation from the OFLC Administrator, to make
the determinations to certify or deny CW-1 Applications for Temporary
Employment Certification. The CO will certify the CW-1 Application for
Temporary Employment Certification only if the employer has met all
requirements, including the criteria established at Sec. 655.451, thus
demonstrating that there is an insufficient number of U.S. workers in
the Commonwealth who are able, willing, qualified, and available for
the job opportunity for which certification is sought and that the
employment of the CW-1 workers will not adversely affect the wages and
working conditions of U.S. workers similarly employed in the
Commonwealth.
2. Section 655.451, Criteria for Temporary Labor Certification
This section requires, as a condition of certification, that the
employer demonstrate full compliance with the requirements of this
subpart. The CO will determine whether the employer has successfully
established that there are insufficient U.S. workers in the
Commonwealth to fill the employer's job opportunity. In making a
determination about the availability of U.S. workers in the
Commonwealth for the job opportunity, the CO will consider individuals
whom the employer rejected for any reason that was not lawful or job-
related to be willing, able, available, and qualified U.S. workers.
Since the individuals will be considered willing, able, available, and
qualified U.S. workers who were unlawfully rejected, if the application
is certified, the number of certified CW-1 workers will be reduced by
the number of unlawfully rejected U.S. workers. If the number of
unlawfully rejected U.S. workers exceeds the number of CW-1 workers
requested, the application will be denied. This new section furthers
the explicit Congressional intent to require a TLC in connection with
the CW-1 visa program, as expressly mandated in Sec. (2)(A) of the
Workforce Act, which seeks to protect U.S. workers by means of adding
this requirement to the program, in addition to mandating a prevailing
wage survey, and an alternate method for determining a prevailing wage,
as well as requiring that a minimum wage is paid. See also 48 U.S.C.
1806 (d)(2)(A)-(C).
3. Section 655.452, Approved Certification
In cases where the CO grants TLC, the CO will electronically
transmit a Final Determination notice and certified CW-1 Application
for Temporary Employment Certification to the employer and USCIS. In
cases where an employer is permitted to file by mail, the CO will use
the same electronic method to transmit the certification documentation
directly to USCIS electronically, but will deliver certification
documentation to the employer using first class mail.
Consistent with current practices in other TLC programs, the
Department will send a copy of all certification documentation to the
employer and, if applicable, to the employer's agent or attorney. The
Department has determined that that even when an employer is
represented, the employer should directly receive notification from
OFLC, and maintain the Final Determination notice, as well as the
certified CW-1 Application for Temporary Employment Certification,
because the employer attests to, and is primarily responsible for,
meeting the obligations and requirements.
Due to the geographic location of the CNMI, the Department has
concluded that the use of an electronic method to issue approved
certification approvals will be most efficient. The Department
anticipates these procedures will also promote program integrity and
expedite the processing of CW-1 petitions at USCIS, in part, by
providing certification information directly from OFLC to USCIS
electronically.
Finally, the employer is required to retain a copy of the certified
CW-1 Application for Temporary Employment Certification, including the
original signed Appendix C, as required under the record keeping
provisions at Sec. 655.456.
4. Section 655.453, Denied Certification
In cases where the CO denies TLC, the CO issues a Final
Determination notice to the employer and, if applicable, to the
employer's agent or attorney. Consistent with the procedural
requirements for issuing approved certifications, the CO is required to
send the Final Determination notice to the employer using an electronic
method authorized by the OFLC Administrator, except where the
Department has permitted an employer to file by mail as set forth in
Sec. 655.420(c), in which case the CO will send the Final
Determination notice using first class mail.
The Final Determination notice will state the reason(s) for denying
the employer's request for TLC, and cite the relevant regulatory
provisions governing the stated grounds for denial. The Final
Determination notice will also advise the employer of its right to seek
administrative review of the final determination. The Final
Determination notice will notify the employer that failure to timely
request administrative judicial review will result in the denial of the
application for labor certification becoming final and the Department
will not accept any appeal on such application.
5. Section 655.454, Partial Certification
This section provides the CO with authority to issue a partial TLC
reflecting either a shorter-than-requested period of employment or a
lower-than-requested number of CW-1
[[Page 12409]]
workers, or both. A partial certification may be issued based upon
information the CO receives during the course of processing the CW-1
Application for Temporary Employment Certification. For example, the
period of employment will be reduced where the employer is unable to
demonstrate that full-time employment will be available beginning on
the date of need through the entire period of employment identified on
the application. The number of workers requested for certification will
be reduced by one for each able, willing, qualified, and available U.S.
worker the CNMI Department of Labor refers or who applies directly with
the employer, and who the employer has rejected for reasons that are
unlawful or unrelated to the job. In other words, the CO can issue a
full certification only where the employer has fully considered each
U.S. worker who applied, whether directly or through referral from the
CNMI Department of Labor, and has identified a lawful, job-related
reason for each U.S. worker not hired.
If a partial labor certification is issued, the CO will send the
Final Determination notice and certified CW-1 Application for Temporary
Employment Certification electronically, except where the employer is
permitted to file by mail as set forth in Sec. 655.420(c). The Final
Determination notice will state the reasons why either the period of
need or the number of CW-1 workers requested has been reduced. The
Final Determination notice will also offer the employer an opportunity
to request administrative judicial review using the procedures further
explained under Sec. 655.461. Where the employer does not timely
request administrative judicial review, the partial certification
determination will be final on the date the CO issued the
certification, and the Department will not accept any appeal on that
CW-1 Application for Temporary Employment Certification.
6. Section 655.455, Validity of Temporary Labor Certification
This section provides that a TLC granted by the CO is valid only
for the period of employment identified in the certified CW-1
Application for Temporary Employment Certification and for the number
of CW-1 positions, the places of employment, the job classification,
the specific services or labor to be performed, and the employer(s),
including any modifications approved by the CO. Finally, a TLC is
prohibited from being transferred from one employer to another unless
the employer to which the TLC is being transferred is a successor in
interest to the employer that received the TLC.
These limitations protect the integrity of the labor certification
process and are consistent with the other labor certification programs
administered by the Department.
7. Section 655.456, Document Retention Requirements for CW-1 Employers
CW-1 employers filing an CW-1 Application for Temporary Employment
Certification must retain the documents and records to demonstrate
compliance for 3 years from the date on which the CW-1 Application for
Temporary Employment Certification expires, or 3 years from the date of
the final determination if the CW-1 Application for Temporary
Employment Certification is denied, or 3 years from the date the
Department receives the request for withdrawal of the CW-1 Application
for Temporary Employment Certification. Employers may maintain these
documents and records electronically.
The documents and records required to be retained include: Proof of
efforts to recruit U.S. workers in the Commonwealth; documentation
supporting the recruitment report, including justification for failure
to contact former U.S. workers, and any supporting resumes and contact
information; and records of each worker's earnings, hours offered and
worked, location(s) where work is performed, if applicable, records of
reimbursement of transportation and subsistence costs incurred by the
workers during transportation; copies of written contracts with third
parties demonstrating compliance with the prohibitions to seek or
receive payments or other compensation of any kind from prospective
workers; evidence of the employer's contact with U.S. workers who
applied for the job opportunity, including documents demonstrating that
any rejections of U.S. workers were for lawful, job-related reasons;
copies of written notices informing OFLC of each CW-1 worker or worker
in corresponding employment who separate from employment; and a copy of
the CW-1 Application for Temporary Employment Certification (including
the original signed Form ETA-9142C, Appendix C) and all accompanying
appendices, including any modifications, amendments or extensions
approved by the CO.
Based on the Department's experience administering other TLC
programs, the documents and records to be retained by the employer are
critical to ensuring an appropriate level of integrity and
accountability in the CW-1 program. Thus, paragraph (d) of this section
requires employers to make all documents and records required to be
retained under this subpart available to the Department, DHS or to any
Federal Government Official performing an investigation, inspection,
audit, or law enforcement function for purposes of copying,
transcribing, or inspecting them to verify employer compliance with
program requirements.
G. Post Certification Activities
1. Section 655.460, Extensions
This section establishes the standards and procedures for employers
to request extensions of the period of employment on the certified CW-1
Application for Temporary Employment Certification. Extensions differ
from amendments to the period of employment in that extensions are
requested after certification, while amendments are requested before
the CO issues a final determination. The Department's experience
administering other TLC programs demonstrates that some employers, due
to unforeseen circumstances, need some degree of flexibility in the
authorized period of employment after the CW-1 Application for
Temporary Employment Certification is granted.
Therefore, employers may request extensions to the period of
employment related solely to weather conditions or other factors beyond
their control (which may include unforeseen changes in market
conditions). The employer must submit the request to the CO documenting
that the extension is needed and that it could not have been reasonably
foreseen by the employer. The CO will not grant an extension where the
total period of employment with the extension would exceed the maximum
applicable duration permitted under Sec. 655.420(g). The Department
has concluded that this requirement provides employers with important
flexibility to address unforeseen circumstances while maintaining the
integrity of the certification decision issued by the Department,
including the labor market test to ensure U.S. worker access to the job
opportunities.
Upon review of the employer's extension request, the CO will
provide notification to the employer and, if applicable, to the
employer's agent or attorney of the decision. Where the CO denies the
extension request, the employer has the right to request administrative
review using the procedures under Sec. 655.461. Where the CO approves
the employer's request for an extension, the written notification
[[Page 12410]]
the employer receives from the CO will constitute an amended Final
Determination notice.
The employer must immediately provide to its CW-1 workers and
workers in corresponding employment a copy of any approved extension,
especially since the CO's determination may have an impact on the
duration of the CW-1 visa status of the workers.
2. Section 655.461, Administrative Review
This section establishes the standards and procedures under which
an employer may request administrative review of a determination issued
by the CO, as well as the procedures BALCA must follow in conducting
such a review. An employer may request administrative review of a
determination issued by the CO with respect to a PWD under Sec.
655.411; denial of a modified CW-1 Application for Temporary Employment
Certification under Sec. 655.432; denial of TLC under Sec. 655.453;
issuance of a partial certification under Sec. 655.454; denial of a
request for an extension under Sec. 655.460; imposition of assisted
recruitment under Sec. 655.471. In addition, an employer may request
administrative review of a revocation of an approved TLC by the OFLC
Administrator under Sec. 655.472.
An employer wishing review of a determination by the CO must
request an administrative review before BALCA to exhaust its
administrative remedies within 10 business days from the date of the
CO's determination. This allows for prompt processing while providing
employers with sufficient time to prepare their requests. Additionally,
this paragraph sets forth the various requirements for requests for
review. Such requests must clearly identify the particular
determination for which review is sought and include a copy of that
determination, and set forth the grounds for the request, including the
specific factual issues the employer wishes BALCA to examine, but may
contain only evidence that was actually before the CO at the time of
the determination.
To facilitate the timely preparation of the Appeal File, the
employer must also send a copy of its request for review to the CO.
Upon the receipt of the request for review, paragraph (b) of this
section requires the CO to assemble and submit the Appeal File to
BALCA, the employer, and the Associate Solicitor for Employment and
Training Legal Services, Office of the Solicitor, U.S. Department of
Labor as soon as practicable by means normally assuring expedited
delivery. If applicable, a copy of the Appeal File will also be sent to
the employer's agent or attorney. Pursuant to paragraph (c), once BALCA
receives the Appeal File, the Chief ALJ will assign either a single ALJ
or a panel of three ALJs to consider the case.
Paragraph (d)(1) explains the briefing schedules for appeals under
this section. If the employer wishes to submit a brief, it must do so
with its request for review. The CO may submit a brief within 7
business days of receipt of the Appeal File. Under this schedule,
within the timeframe permitted for the submission of a request for
review, the employer may develop a brief that sets forth the specific
grounds for its request and corresponding legal arguments. In turn, the
CO may respond to those arguments within a set timeframe. This
procedure assists the ALJ's decision-making process by allowing for a
complete set of arguments by the employer and responses by the CO while
providing the parties a predictable, yet expedited, briefing schedule.
Paragraph (d)(2) sets forth the standard of review that applies to
requests for administrative review. When reviewing such requests, the
ALJ must uphold the CO's decision unless the employer shows that the
decision is arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with the law. Including this standard in the IFR will
make clear what employers must prove in order to receive a favorable
decision. It will also ensure BALCA is conducting its administrative
review in a consistent manner.
To ensure an administrative judicial decision is rendered as
expeditiously as possible, paragraph (e) specifies that BALCA must
review the CO's determination only on the basis of the documents in the
Appeal File that were before the CO at the time of the CO's
determination, the request for review, and any legal briefs submitted.
Sometimes, the Appeal File contains new evidence submitted by the
employer to the CO after the CO has issued his or her decision, such as
when the employer submits a request for review with new evidence, or a
corrected recruitment report with new information, after the CO has
denied certification. Although such evidence is in the Appeal File,
BALCA may not consider this new evidence because it was not before the
CO at the time of the CO's determination. Similarly, BALCA may not
consider evidence not before the CO by the time the CO's determination
was issued, even if such evidence is in the request for review or legal
briefs. This provision reflects longstanding principles in the
administrative review of H-2A and H-2B cases, and provides for fair
determinations of these matters.
Finally, paragraphs (e) and (f) states that BALCA must notify all
parties of its decision within 7 business days of the submission of the
CO's brief or 10 business days after receipt of the Appeal File,
whichever is later, of its decision to: (1) Affirm the CO's
determination; (2) reverse or modify the CO's determination; or (3)
remand the case back to the CO for further action. This timeline
provides BALCA with a reasonable timeframe in which to render a
decision, while ensuring prompt resolution of employers' review
requests.
3. Section 655.462, Withdrawal of an CW-1 Application for Temporary
Employment Certification
Paragraph (a) permits an employer to submit a request to withdraw
an CW-1 Application for Temporary Employment Certification at any time
after the application is submitted to the NPC for processing, including
after the CO grants TLC under Sec. 655.450. However, the employer must
continue to comply with the terms and conditions of employment
contained in the CW-1 Application for Temporary Employment
Certification and work contract for all workers recruited and hired in
connection with that application. In accordance with paragraph (b), the
employer must submit a withdrawal request in writing to the NPC,
clearly identifying the CW-1 Application for Temporary Employment
Certification to be withdrawn and stating the reasons for requesting
withdrawal.
4. Section 655.463, Public Disclosure
This section provides that the Department will maintain a publicly
accessible electronic file with information on all employers who
voluntarily elect to request TLC under the CW-1 program. The database
will include nonprivileged information extracted from the CW-1
Applications for Temporary Employment Certification including, but not
limited to, the number of workers requested for TLC, the date an
application is filed, the date an application is decided, and the final
disposition of an application. Providing this information
electronically will enhance transparency of the CW-1 program and of
OFLC's processing of these applications. It will also make certain that
such information is readily available to those who seek it from the
Department.
[[Page 12411]]
H. Integrity Measures
1. Section 655.470, Audits
This section outlines the process under which the CO will conduct
audits of certified CW-1 Applications for Temporary Employment
Certification. The statutory mandate to ensure that a sufficient number
of qualified U.S. workers in the CNMI are not available and that
employment of the foreign workers will not adversely affect the wages
and working conditions of similarly employed U.S. workers serves as the
basis for the Department's authority to conduct audit examinations.
There is real value in auditing certified CW-1 Applications for
Temporary Employment Certification because they can establish a record
of employer compliance or noncompliance with program requirements, and
they contain information that assists the Department in determining
whether it needs to refer findings to other Federal agencies for
further investigation or, depending on the nature of the violations,
initiate debarment proceedings to prohibit an employer, agent, or
attorney, or their successors in interest, from participating in the
CW-1 program.
Paragraph (a) provides that the CO has sole discretion to choose
the certified CW-1 Applications for Temporary Employment Certification
that will be audited, which includes the selection of applications
using a random assignment method. When a certified CW-1 Application for
Temporary Employment Certification is selected for audit, paragraph (b)
requires the CO to issue an audit letter to the employer and, if
appropriate, a copy of such letter to the employer's attorney or agent,
listing the documentation the employer must submit and the date (no
more than 30 calendar days from the date the audit letter is issued) by
which the documentation must be sent to the CO. Additionally, paragraph
(b) requires that the audit letter issued by the CO advise the employer
that failure to fully comply with the audit process may result in the
revocation of its certification or in debarment, under Sec. Sec.
655.472 and 655.473, respectively, or require the employer to undergo
assisted recruitment in future filings of a CW-1 Application for
Temporary Employment Certification, under Sec. 655.471.
Paragraph (c) permits the CO to request additional information and/
or documentation from the employer as needed in order to complete the
audit. Paragraph (d) provides the CO with authority to provide the
audit findings and underlying documentation to DHS or other appropriate
enforcement agencies. The CO may refer any findings that an employer
discouraged a qualified U.S. worker from applying, failed to hire,
discharged, or otherwise discriminated against a qualified U.S. worker,
to the Department of Justice, Civil Rights Division, Immigrant and
Employee Rights Section.
2. Section 655.471, Assisted Recruitment
This section protects the integrity of the CW-1 program by
requiring the employer to follow special requirements during its
recruitment process where the CO determines the employer committed one
or more violations that do not warrant program debarment. Specifically,
paragraph (a) permits the CO to require an employer to participate in
assisted recruitment for any future CW-1 Application for Temporary
Employment Certification, if the CO determines as a result of an audit,
or otherwise, that a violation not warranting debarment from the CW-1
program has occurred. Assisted recruitment ordered by the CO can also
be an effective tool to help employers that, due to either program
inexperience or confusion, commit unintentional violations in their CW-
1 Application for Temporary Employment Certification and indicate a
need for further assistance from the Department.
Paragraph (b) of this section requires the CO to provide written
notification to the employer and, if applicable, to the employer's
agent or attorney, of the requirement to participate in assisted
recruitment for any future filed CW-1 Application for Temporary
Employment Certification. The CO may require the employer to follow
special requirements during its recruitment process for a period of up
to 2 years from the date the notice is issued. The nature of the
assisted recruitment will be at the discretion of the CO, and such
requirements will be based on the totality of the circumstances of the
employer. The notification issued by the CO will state the reasons for
the imposition of the additional requirements and explain that the
employer's agreement to accept the conditions related to the assisted
recruitment process will constitute their inclusion as bona fide
conditions and terms of a CW-1 Application for Temporary Employment
Certification. In the notice, the CO must also offer the employer an
opportunity to request an administrative judicial review, in accordance
with the procedures further explained under Sec. 655.461.
As set forth in paragraph (c), the assisted recruitment process
will be in addition to any recruitment required of the employer under
Sec. Sec. 655.442 through 655.445 of this subpart. This paragraph also
provides a nonexhaustive list of special requirements the CO may order
the employer to undertake during its recruitment process, such as
requiring submission to the CO of draft advertisements at the time of
filing the CW-1 Application for Temporary Employment Certification,
designating specific sources of recruitment for U.S. workers, extending
the period of time advertisements are available to U.S. workers,
requiring the employer to either notify the CO when advertisements are
placed and/or provide proof of publication of all advertisements, or
other requirements verifying the employer conducted the assisted
recruitment ordered by the CO.
To ensure employers comply with these assisted recruitment
requirements, paragraph (d) provides that, where the employer
materially fails to comply with the requirements of this section, the
CO will deny the CW-1 Application for Temporary Employment
Certification and may initiate debarment proceedings against the
employer, agent, or attorney, or their successors in interest, in
accordance with the standard and procedures under Sec. 655.473.
3. Section 655.472, Revocation
This section outlines the process by which the OFLC Administrator
may revoke an approved CW-1 TLC. The ability to revoke an approved
labor certification is a critical tool for enabling the Department to
protect the integrity of the CW-1 program and stems from the agency's
inherent authority to reconsider its decisions.
As set forth in paragraph (a) of this section, the OFLC
Administrator will only revoke TLCs under certain circumstances: (1)
When the OFLC Administrator finds that the issuance of the TLC was not
justified due to fraud or willful misrepresentation of a material fact
in the application process, as defined in at Sec. 655.473(d); (2) when
the OFLC Administrator finds that the employer substantially failed to
comply with any of the terms and conditions of the TLC, as defined in
Sec. 655.473(d) and (e); or (3) when the OFLC Administrator determines
that the employer is impeding the Department's audit examination
authority under Sec. 655.470, or impeding any Federal Government
Official performing an investigation, inspection, audit, or law
enforcement function under this subpart.
Paragraph (b) of this section outlines the procedures OFLC will use
when the OFLC Administrator decides to revoke
[[Page 12412]]
an approved TLC for CW-1 workers. If the OFLC Administrator decides to
revoke an approved TLC, paragraph (b)(1) provides that it will send a
Notice of Revocation to the CW-1 employer, and a copy to its attorney
or agent, if applicable. The notice will contain a detailed statement
of the grounds for the revocation and inform the employer, and its
agent or attorney if applicable, of the employer's rights. Upon
receiving the Notice of Revocation, the CW-1 employer has two options
if it wishes to challenge the revocation: (1) It may submit rebuttal
evidence to the OFLC Administrator; or (2) it may request Administrator
review of the Notice of Revocation by BALCA pursuant to the procedures
detailed in Sec. 655.461. As set forth in paragraph (b)(2) of this
section, if the employer does not submit rebuttal evidence or file a
request for Administrator review within 10 business days of the date of
the Notice of Revocation, the notice will be deemed the final agency
action and will take effect immediately at the end of the 10 business
days. If the employer chooses to file rebuttal evidence, and the
employer timely files that evidence, the OFLC Administrator will review
it and provide the employer with a final determination on revocation
within 10 business days of receiving the rebuttal evidence.
If the OFLC Administrator decides to uphold the revocation, it will
inform the CW-1 employer of its right to request administrative review
by BALCA according to the procedures set forth at Sec. 655.461. The
CW-1 employer must appeal OFLC's determination within 10 business days;
otherwise, OFLC's decision becomes the final agency action by the
Secretary and will take effect immediately at the end of the 10
business days.
If the CW-1 employer chooses to request administrative review,
either in lieu of submitting rebuttal evidence, or after the OFLC
Administrator makes a determination on the rebuttal evidence, paragraph
(b)(3) of this section explains that such requests must be submitted
according to the appeal procedures of Sec. 655.461. Paragraph (b)(4)
provides that the timely filing of either the rebuttal evidence or a
request for administrative review stays the revocation pending the
outcome of the applicable proceeding. If the TLC is ultimately revoked,
paragraph (b)(5) provides that OFLC will notify DHS and the Department
of State.
Finally, paragraph (c) of this section lists a CW-1 employer's
continuing obligations to its CW-1 and corresponding workers if the
employer's CW-1 certification is revoked. The obligations include
reimbursement of actual inbound transportation, visa, and other
expenses (if they have not been paid), payment of the workers' outbound
transportation expenses, payment to the workers of the amount due under
the three-fourths guarantee; and payment of any other wages, benefits,
and working conditions due or owing to workers under this subpart.
When an employer's certification is revoked, the revocation applies
to that particular certification only; violations relating to a
particular certification will not be imputed to other certifications
issued to the same employer for which there has been no finding of
employer culpability. In some situations, however, OFLC may revoke all
of an employer's existing labor certifications where the underlying
violation applies to all of the employer's certifications. For
instance, if OFLC finds that the employer meets either the basis for
revocation in paragraph (a)(3) of this section (i.e., failure to
cooperate with a Department's investigation or with a Department
official performing an investigation, inspection, audit, or law
enforcement function), this finding could provide a basis for revoking
any and all of the employer's existing TLCs approved under this
subpart. Additionally, where OFLC finds that violations of paragraph
(a)(1) or (2) of this section affect all of the employer's
certifications, such as where an employer misrepresents its legal
status, OFLC also may revoke all of that employer's certifications.
Lastly, where an employer's certification has been revoked, OFLC may
take a more careful look at the employer's other certifications to
determine if similar violations exist that would warrant revocation.
The Department recognizes the seriousness of revocation as an
administrative remedy; accordingly, the grounds for revocation reflect
violations that significantly undermine the integrity of the CW-1
program. OFLC intends to use the authority to revoke only when an
employer's actions warrant such a severe consequence.
4. Section 655.473, Debarment
This section outlines the process under which the OFLC
Administrator may debar an employer, agent, attorney, or their
successors in interest, from participation in the CW-1 program. The
ability to suspend and debar entities from participating in the labor
certification program is necessary to encourage compliance with program
requirements and maintain the integrity of the program. Suspension and
debarment authority is a critical tool for enabling the Department to
protect both U.S. and foreign workers, and to fulfill its statutory
mandate to prevent adverse effects on U.S. workers due to the presence
of temporary foreign labor.
The Department has repeatedly recognized its inherent suspension
and debarment authority in the foreign labor certification context. As
the Second Circuit found in Janik Paving & Construction, Inc. v. Brock,
828 F.2d 84 (2d Cir. 1987), the Department possesses an inherent
authority to refuse to provide a benefit or lift a restriction for an
employer that has acted contrary to the welfare of U.S. workers. In
assessing the Department's authority to debar violators, the court
found that ``[t]he Secretary may . . . make such rules and regulations
allowing reasonable variations, tolerances, and exemptions to and from
any or all provisions . . . as he may find necessary and proper in the
public interest to prevent injustice or undue hardship or to avoid
serious impairment of the conduct of Government business.'' Id. at 89
n.6. In that case, the implied authority to debar existed even though
the statute in question ``specifically provided civil and criminal
sanctions for violations of overtime work requirements but failed to
mention debarment.'' Id. at 89. The court held that debarment may be
necessary to ``effective enforcement of a statute.'' Id. at 91.
The power to debar is also a function of a Federal agency's general
authority to prescribe rules of procedure to determine who can practice
and participate in administrative proceedings before it. Koden v. DOJ,
546 F.2d 228, 232-33 (7th Cir. 1977) (citing Goldsmith v. U.S. Board of
Tax Appeals, 270 U.S. 117 (1926)). Such power exists even if the agency
does not have express statutory authority to prescribe the
qualifications of those entities. Touche Ross & Co. v. SEC, 609 F.2d
570, 582 (2d Cir. 1979). An agency with the power to determine who may
practice before it also has the authority to debar or discipline such
individuals for unprofessional conduct. See Koden, 564 F. 2d at 233.
The Department has exercised such authority in the past in prescribing
the qualifications, and procedures for denying the appearance, of
attorneys and other representatives before the Department's OALJ under
29 CFR 18.34(g). See also Smiley v. Director, OWCP, 984 F.2d 278, 283
(9th Cir. 1993).
In order to encourage compliance, the regulations for the CW-1
program incorporate attestations, audits, and the remedial measure of
debarment. Use of debarment as a mechanism to encourage compliance has
been used by the
[[Page 12413]]
Department in its other foreign labor certification and attestation
programs.\46\ Ensuring the integrity of a statutory program enacted to
protect U.S. workers is an important part of the Department's mission.
---------------------------------------------------------------------------
\46\ 20 CFR 655.73; 20 CFR 655.182; and 20 CFR 656.31(f).
---------------------------------------------------------------------------
Paragraph (a) of this section provides that the OFLC Administrator
may debar an employer, agent, attorney, or any successor in interest to
that employer, agent, or attorney, from participating in any action
under this subpart, if the OFLC Administrator finds that the employer,
agent, or attorney substantially violated a material term or condition
of the Application for Prevailing Wage Determination or CW-1
Application for Temporary Employment Certification. This section also
notes that copies of final debarment decisions will be forwarded to DHS
and DOS promptly. Paragraph (b) explains that the debarred employer,
agent, attorney, or any successor in interest to any debarred employer,
agent, or attorney, will be disqualified not only from filing under
this subpart, but also from filing any labor certification applications
\47\ or labor condition applications \48\ with the Department. If such
an application is filed, it will be denied without review. The debarred
party will be unable to file, or have filed on its behalf, labor
certification applications in connection with not only the CW-1
program, but also applications under any other program managed by OFLC.
---------------------------------------------------------------------------
\47\ See 20 CFR part 655, subpart A (governing H-2B temporary
nonagricultural workers); 20 CFR part 655, subpart B (governing H-2A
temporary agricultural workers); 20 CFR part 655, subpart F
(governing the temporary employment of D-1 crewmembers on foreign
vessels to perform longshore work at U.S. ports); and 20 CFR part
656 (permanent labor certification).
\48\ 20 CFR 655, subpart H (governing labor condition
applications for H-1B foreign nationals entering the U.S. on a
temporary basis to work in specialty occupations or as fashion
models, H-1b1 professionals entering under the U.S.-Chile or U.S.-
Singapore Free Trade Agreements, and E-3 professionals entering
under the U.S.-Australia Free Trade Agreement).
---------------------------------------------------------------------------
Paragraph (c) limits any period of debarment under paragraphs (a)
and (b) to not more than 5 years for a single violation. This means
that the total debarment period may exceed 5 years if more than one
violation has occurred. For example, if the OFLC Administrator finds
that an employer, agent, attorney, or any successor in interest to that
employer, agent, or attorney, has committed two violations warranting
debarment, the OFLC Administrator may impose two periods of debarment
that will run consecutively, for a total of up to 10 years. The first
period of debarment would run from the date of the final agency
decision, and the second period of debarment would run from the end of
the first period of debarment.
Paragraph (d) of this section defines a violation for purposes of
debarment. It explains that a violation includes one or more acts of
commission or omission on the part of the employer, agent, or attorney,
which involve: Failure to pay or provide the required wages, benefits,
or working conditions to the employer's CW-1 workers and/or workers in
corresponding employment; failure, except for lawful, job-related
reasons, to offer employment to qualified U.S. workers who applied for
the job opportunity for which certification was sought; failure to
comply with the employer's obligations to recruit U.S. workers;
improper layoff or displacement of U.S. workers or workers in
corresponding employment; failure to comply with the NOD process, as
set forth in Sec. 655.431, or the assisted recruitment process, as set
forth in Sec. 655.471; impeding the audit process, as set forth in
Sec. 655.470, or impeding any Federal Government Official performing
an investigation, inspection, audit, or law enforcement function;
employing a CW-1 worker outside of the Commonwealth, in an activity/
activities not listed in the work contract, or outside the validity
period of employment of the work contract, including any approved
extension thereof; a violation of the requirements of Sec. 655.423(n)
or (o); a violation of any of the provisions listed in Sec.
655.423(q); or any other act showing such flagrant disregard for the
law that future compliance with program requirements cannot reasonably
be expected. For debarment purposes, a violation also includes fraud
involving the Application for Prevailing Wage Determination or the CW-1
Application for Temporary Employment Certification, or a material
misrepresentation of fact during the course of processing the CW-1
Application for Temporary Employment Certification. It is important to
emphasize that debarment in the context of the CW-1 program can be
triggered by a single act or omission, as opposed to a pattern or
practice of such actions or omissions.
Paragraph (e) provides the standard for determining whether a
violation is so substantial as to merit debarment. This section
provides a nonexhaustive list of factors that the OFLC Administrator
may consider in determining whether a violation is substantial,
including: A previous history of violations under the CW-1 program; the
number of CW-1 workers, workers in corresponding employment, or U.S.
workers who were and/or are affected by the violations; the gravity of
the violations; and the extent to which the violator achieved a
financial gain due to the violations, or the potential financial loss
or potential injury to the workers. This list provides comprehensive,
but not exhaustive, grounds or factors that may advise the OFLC
Administrator when making a determination as to whether the
substantiality standard has been met. In assessing whether debarment is
appropriate, the OFLC Administrator may also consider any mitigating
facts the employer, agent, or attorney wishes to provide, such as
efforts made in good faith to comply with the CW-1 program, an
explanation from the person charged with the violation or violations,
or a commitment to future compliance, taking into account the public
health, interest, or safety, and previous history of violations under
the CW-1 program.
Paragraph (f) provides the procedures for debarment. The procedures
for debarment are similar to the debarment procedures that are
currently in place in other temporary employment programs, particularly
the H-2B program. See 20 CFR 655.73. As provided in paragraph (f)(1),
the debarment process begins when the OFLC Administrator makes a
determination to debar an employer, agent, attorney, or any successor
in interest to the employer, agent, or attorney, and issues the party a
Notice of Debarment. The notice must state the reasons for the
debarment finding, including a detailed explanation of the grounds for
and the duration of the debarment, and must inform the party subject to
the notice of its right to submit rebuttal evidence or to request
administrative review of the debarment by BALCA. If the party does not
file rebuttal evidence or a request for BALCA review within 30 calendar
days, the Notice of Debarment will take effect on the date specified in
the notice or, if no date is specified, at the end of the 30-day
period. If the party timely files rebuttal evidence or a request for
review, the debarment will be stayed pending the outcome of the appeal
as provided in paragraphs (f)(2) through (6) of this section.
If the party who received the Notice of Debarment wishes to file
rebuttal evidence, paragraph (f)(2) provides that the OFLC
Administrator will review any timely filed rebuttal evidence and will
inform the party of the Final Determination on debarment within 30
calendar days of receiving the rebuttal evidence. If the OFLC
Administrator determines that the party must be
[[Page 12414]]
debarred, OFLC will inform the party of its right to request
administrative review by BALCA. The party must request review within 30
calendar days after the date of the Final Determination, or the Final
Determination becomes the final agency order and the debarment will
take effect on the date specified in the Final Determination or, if no
date is specified, at the end of that 30-day period.
Paragraph (f)(3) explains the process for requesting review of a
Notice of Debarment or Final Determination. Paragraph (f)(3)(i)
instructs the party requesting review of a debarment to file a written
request with the Chief ALJ and simultaneously serve a copy on the OFLC
Administrator. The request for review must clearly identify the
particular debarment determination for which review is sought and must
set forth the particular grounds for the request. If no request for
review is filed, or if such a request is filed untimely, the debarment
will take effect on the date specified in the Notice of Debarment or
Final Determination or, if no date is specified, 30 calendar days from
the date the Notice of Debarment or Final Determination is issued.
Paragraph (f)(3)(ii) explains that upon receipt of the request for
review, the OFLC Administrator will promptly send a certified copy of
the ETA case file to the Chief ALJ by means normally assuring expedited
delivery. The Chief ALJ will immediately assign an ALJ to conduct the
review. Paragraph (f)(3)(iii) states that the submissions of the
parties must contain only legal argument and evidence that was within
the record upon which the debarment was based. This ensures that all
parties have fair notice of the facts potentially at issue during the
review.
Paragraph (f)(4) explains the procedures for the ALJ's review. In
considering requests for review, the ALJ must provide all parties with
30 calendar days to submit legal briefs. The ALJ must review the
debarment determination on the basis of the record upon which the
determination was made, the request for review, and any briefs
submitted. The ALJ's decision must affirm, reverse, or modify the OFLC
Administrator's determination, and provide the decision to the parties
by means normally assuring expedited delivery. The ALJ's decision will
become the final agency action, unless either party timely seeks review
of the decision with the Administrative Review Board (ARB).
As set forth in paragraph (f)(5)(i), either party wishing review of
the ALJ's decision must, within 30 calendar days of the decision, file
a petition with the ARB requesting review of the decision. Copies of
the petition request must be served on all parties and on the ALJ. If
the ARB declines to accept the petition or does not issue a notice
accepting the petition for review within 30 calendar days after the
receipt of a timely filed petition, the ALJ's decision becomes the
final agency action. If the ARB accepts the petition for review, the
ALJ's decision will be stayed unless and until the ARB issues an order
affirming the decision. The ARB must serve notice of its decision to
accept or not to accept the petition upon the ALJ and upon all parties
to the proceeding. Paragraphs (f)(5)(ii) and (iii) provide that, upon
receipt of the ARB's notice to accept the petition, the OALJ will
promptly forward a copy of the complete appeal record to the ARB. Where
the ARB has determined to review the decision and order, the ARB will
notify each party of the issues raised, the form in which submissions
must be made (e.g., briefs or oral argument), and the time within which
the presentation must be submitted. Paragraph (f)(6) requires the ARB's
final decision to be issued within 90 calendar days from the notice
granting the petition, and to be served upon all parties and the ALJ.
IV. Rulemaking Analyses and Notices
A. Executive Order 12866: Regulatory Planning and Review; Executive
Order 13563: Improving Regulation and Regulatory Review; and Executive
Order 13771: Reducing Regulation and Controlling Regulatory Costs
Under E.O. 12866, the OMB's Office of Information and Regulatory
Affairs (OIRA) determines whether a regulatory action is significant
and, therefore, subject to the requirements of the E.O. and review by
OMB. Section 3(f) of E.O. 12866 defines a ``significant regulatory
action'' as an action that is likely to result in a rule that: (1) Has
an annual effect on the economy of $100 million or more, or adversely
affects in a material way the economy, a sector of the economy,
productivity, competition, jobs, the environment, public health or
safety, or State, local, or tribal governments or communities (also
referred to as ``economically significant''); (2) creates serious
inconsistency or otherwise interferes with an action taken or planned
by another agency; (3) materially alters the budgetary impacts of
entitlement grants, user fees, or loan programs, or the rights and
obligations of recipients thereof; or (4) raises novel legal or policy
issues arising out of legal mandates, the President's priorities, or
the principles set forth in the E.O. Id. OMB has determined that this
IFR is significant regulatory action under section 3(f) of E.O. 112866.
E.O. 13563 directs agencies to: (1) Propose or adopt a regulation
only upon a reasoned determination that its benefits justify its costs;
(2) tailor the regulation to impose the least burden on society,
consistent with achieving the regulatory objectives; and (3) in
choosing among alternative regulatory approaches, select those
approaches that maximize net benefits. E.O. 13563 recognizes that some
benefits are difficult to quantify and provides that, where appropriate
and permitted by law, agencies may consider and discuss qualitatively
values that are difficult or impossible to quantify, including equity,
human dignity, fairness, and distributive impacts.
This IFR is an E.O. 13771 regulatory action.
1. Summary of the Economic Analysis
The Department anticipates that the IFR will result in benefits,
costs, and transfer payments, and will benefit U.S. workers and their
wages, as described in more detail below. In particular, and as
presented in Exhibit 1 below, U.S. workers are estimated to receive
wage transfer payments of approximately $102,042,965 \49\ from
employers over the 11.25-year period that the IFR is in effect (from FY
2019 through FY 2030 Q1).
---------------------------------------------------------------------------
\49\ For purposes of this economic analysis the Department has
conservatively estimated a constant number of U.S. workers and
corresponding total wage transfer to those U.S. workers in the CNMI
throughout the life of the program.
---------------------------------------------------------------------------
The benefits of the IFR are described qualitatively in section
IV.A.2 (Benefits). The estimated costs and transfer payments are
explained in sections IV.A.3 (Quantitative Analysis Considerations) and
IV.A.4 (Subject-by-Subject Analysis).
The costs of the IFR are associated with rule familiarization and
recordkeeping requirements for CW-1 employers, as well as the new
processes by which employers will obtain a PWD and TLC from the
Department. The estimated transfer payments reflect the requirement
that employers pay for transportation, lodging, and subsistence for CW-
1 workers traveling between the workers' country of origin and the
CNMI. In addition, the estimated transfer payments include the
anticipated impact on the wages of CW-1 workers and corresponding U.S.
workers.
Exhibit 1 shows the total estimated costs and transfer payments of
the IFR. The IFR is expected to have first-year costs of $4,359,067 and
first-year
[[Page 12415]]
transfer payments of $42,286,653 (= $28,877,022 to CW-1 workers +
$13,409,631 to U.S. workers). Over the 11.25-year period that the IFR
is in effect, the annualized costs are estimated at $3,190,028 and the
annualized transfer payments are estimated at $35,522,023 (=$22,117,381
to CW-1 workers+$13,404,642 to U.S. workers) at a discount rate of 7
percent. In total, the IFR is estimated to result in a cost of
$24,284,121 and transfer payments of $270,411,736 (=$168,368,772 to CW-
1 workers + $102,042,965 to U.S. workers) at a discount rate of 7
percent.
Exhibit 1--Estimated Costs and Transfer Payments
[2018 dollars]
----------------------------------------------------------------------------------------------------------------
Transfer payments
-----------------------------------------------
Costs Transfer Transfer
Total transfer payments to CW- payments to
payments 1 workers U.S. workers
----------------------------------------------------------------------------------------------------------------
First Year Total................................ $4,359,067 $42,286,653 $28,877,022 $13,409,631
Annualized, 3% discount rate, 11.25 years....... 3,086,620 34,794,484 21,387,623 12,406,860
Annualized, 7% discount rate, 11.25 years....... 3,190,028 35,522,023 22.118.381 13,404,642
Total, 3% discount rate, 11.25 years............ 29,106,568 328,109,108 201,683,522 126,425,586
Total, 7% discount rate, 11.25 years............ 24,284,121 270,411,736 168,368,772 102,042,965
----------------------------------------------------------------------------------------------------------------
2. Benefits
The purposes of the Workforce Act are (1) to increase the
percentage of U.S. workers in the CNMI while maintaining the minimum
number of foreign workers to meet the changing demands of the CNMI
economy; (2) to encourage the hiring of U.S. workers; and (3) to ensure
that no U.S. worker is at a competitive disadvantage for employment
compared to a foreign worker or is displaced by a foreign worker. The
Department anticipates that the provisions of this IFR will engender
the benefits for U.S. workers that Congress intended in passing the
Workforce Act. For example, the mandated payment of transportation and
subsistence costs for CW-1 workers and corresponding U.S. workers will
help ensure that U.S. workers are not placed at a competitive
disadvantage compared to foreign workers. Additionally, the requirement
to advertise the job opportunity on the CNMI Department of Labor's job
listing system will improve the visibility of job openings to U.S.
workers, thus expanding employment opportunities for U.S. workers. The
requirement of a supervised labor market test and required submission
of supporting documents by the employer will further provide that CW-1
workers are only hired if there are not sufficient U.S. workers in the
Commonwealth who are able, willing, qualified, and available to perform
the work for which CW-1 workers are sought. In addition, employers
seeking to employ CW-1 workers must pay the highest of the prevailing
wage, the Commonwealth minimum wage, or the Federal minimum wage; and
corresponding U.S. workers must be offered at least the same wages,
benefits, and working conditions offered to foreign workers. These
protections, and others in this regulation, will provide that the
employment of nonimmigrant workers will not adversely affect the wages
and working conditions of U.S. workers.
According to the BEA, the GDP of the CNMI increased 25.1 percent in
2017 after increasing 28.2 percent in 2016.\50\ The most significant
contributor to GDP growth was the accommodations and amusement
industry, which includes tourism as well as the casino sector. The CNMI
experienced substantial growth in visitor spending, particularly on
casino gambling. The number of visitors to the CNMI grew 11 percent in
2016 and 24 percent in 2017.\51\ CW-1 workers are heavily employed in
these sectors. The CNMI's Bureau of Environmental and Coastal Quality
estimates that at least 8,124 employees will be needed to operate new
hotels and casinos.\52\ The island of Tinian's labor demand alone is
expected to be 6,359 workers for operation, more than twice the Tinian
island population in 2016.\53\ The 2017 ``Report to the President on
902 Consultations'' estimates that 11,613 workers will be needed to
operate the new facilities by 2021.\54\ This would be a substantial
increase from the 3,226 workers in the accommodation and food services
industry in 2014 (80 percent of whom were not U.S. citizens) and 928
workers in the arts, entertainment, and recreation industry (78 percent
of whom were not U.S. citizens).\55\
---------------------------------------------------------------------------
\50\ Source: U.S. Department of Commerce, Bureau of Economic
Analysis, ``CNMI GDP Increases in 2017: Growth Led by Tourism and
Gaming Industry Revenue,'' https://www.bea.gov/system/files/2018-10/cnmigdp_101718.pdf.
\51\ Id.
\52\ Source: U.S. Government Accountability Office,
``Commonwealth of the Northern Mariana Islands Implementation of
Federal Minimum Wage and Immigration Laws'' (May 2017), https://www.gao.gov/assets/690/684778.pdf.
\53\ Ibid.
\54\ Source: Special Representatives of the United States and
the Commonwealth of the Northern Mariana Islands, ``Report to the
President on 902 Consultations'' (January 2017), https://www.doi.gov/sites/doi.gov/files/uploads/902-consultations-report-january-2017.pdf.
\55\ Source: U.S. Government Accountability Office,
``Commonwealth of the Northern Mariana Islands Implementation of
Federal Minimum Wage and Immigration Laws'' (May 2017), https://www.gao.gov/assets/690/684778.pdf.
---------------------------------------------------------------------------
Available CNMI labor could be recruited from recent graduates. CNMI
high schools graduated 678 students in 2016, while the Northern
Marianas College graduated 204 students, although this increase by new
entrants may be somewhat offset by people who are retiring from the
workforce.\56\ Additionally, there were nearly 2,400 unemployed persons
in the CNMI domestic workforce in 2016.\57\ Workers could also be
recruited from U.S. States, territories, and freely associated States.
Higher prevailing wages and employer-provided transportation and
subsistence costs may make relocation to the CNMI more attractive and
feasible for workers in U.S. States, territories and freely associated
States. Thus, the Department anticipates that the IFR will increase the
percentage of U.S. workers employed in the CNMI.
---------------------------------------------------------------------------
\56\ Id.
\57\ Id.
---------------------------------------------------------------------------
3. Quantitative Analysis Considerations
The Department estimated the costs and transfer payments of the IFR
relative to the existing baseline (i.e., the current practices for
complying with the CW-1 program as currently codified at 8 CFR
214.2(w)). In accordance with the regulatory analysis guidance
articulated in OMB's Circular A-4 and consistent with the Department's
practices in
[[Page 12416]]
previous rulemakings, this regulatory analysis focuses on the likely
consequences of the IFR (i.e., the costs and transfer payments that are
expected to accrue to the affected entities). The analysis covers 11.25
years (from FY 2019 through FY 2030 Q1) to ensure it captures the major
costs and transfer payments that are likely to accrue over time. The
Department expresses all quantifiable impacts in 2018 dollars and uses
discount rates of three and seven percent, pursuant to Circular A-4.
a. Estimated Number of CW-1 Employers, Applications, and Workers
To calculate the annual costs and transfer payments, the Department
first needed to estimate the number of CW-1 employers, CW-1 TLC
applications, and CW-1 workers (beneficiaries) in the 11.25-year period
from FY 2019 through the first quarter of FY 2030. Both the projected
number of CW-1 employers and the projected number of CW-1 TLC
applications are based on the projected number of CW-1 workers. The
projected number of CW-1 workers is equivalent to the annual statutory
limit (numerical cap) on the number of CW-1 beneficiaries.
To estimate the number of CW-1 employers, the Department identified
the total number of unique employers in the USCIS beneficiary data over
the FY 2012-2018 period, which was 2,404 employers.\58\ Then, the
Department calculated the ratio of projected CW-1 workers to employers
for FY 2019, which is 5.4 (= 13,000 / 2,404). Next, the Department
divided the numerical cap of CW-1 workers for each fiscal year by 5.4
to project the number of CW-1 employers for each year in the analysis
period. For example, the numerical cap for FY 2020 is 12,500, so the
projected number of CW-1 employers in FY 2020 is 2,315 (= 12,500 /
5.4).
---------------------------------------------------------------------------
\58\ Source: U.S. Department of Homeland Security, U.S.
Citizenship and Immigration Services, unpublished table. In
accordance with 8 CFR 214.2(w)(9), a petitioning employer may
include more than one beneficiary in a CW-1 petition if the
beneficiaries will be working in the same occupational category, for
the same period of time, and in the same location.
---------------------------------------------------------------------------
To estimate the number of CW-1 TLC applications, the Department
calculated the average annual ratio of CW-1 beneficiaries to CW-1
petitions filed with DHS over the FY 2012-2018 period, which was 1.5
(rounded).\59\ Then, the Department divided the numerical cap of CW-1
workers for each fiscal year by 1.5 to project the number of CW-1
applications for each year in the analysis period. For example, the
numerical cap for FY 2019 is 13,000, so the projected number of CW-1
labor certification applications for FY 2019 is 8,636 (= 13,000 /
1.5054).
---------------------------------------------------------------------------
\59\ Source: U.S. Department of Homeland Security, U.S.
Citizenship and Immigration Services, unpublished table.
---------------------------------------------------------------------------
Exhibit 2 presents the projected number of CW-1 employers,
applications, and workers for each year in the analysis period.
Exhibit 2: Projected Number of CW-1 Employers, Applications, and Workers
[FY 2019-FY 2030 Q1]
----------------------------------------------------------------------------------------------------------------
Projected CW-1
Projected CW-1 Projected CW-1 workers
Fiscal year employers applications (equivalent to
numerical cap)
----------------------------------------------------------------------------------------------------------------
2019...................................................... 2,404 8,636 13,000
2020...................................................... 2,315 8,303 12,500
2021...................................................... 2,222 7,971 12,000
2022...................................................... 2,130 7,639 11,500
2023...................................................... 2,037 7,307 11,000
2024...................................................... 1,852 6,643 10,000
2025...................................................... 1,667 5,979 9,000
2026...................................................... 1,481 5,314 8,000
2027...................................................... 1,296 4,650 7,000
2028...................................................... 1,111 3,986 6,000
2029...................................................... 926 3,321 5,000
2030 Q1................................................... 185 664 1,000
----------------------------------------------------------------------------------------------------------------
To estimate the number of CW-1 workers who will need to be provided
with transportation, lodging, and subsistence payments, the Department
used petition renewal data from USCIS.\60\ The data reveal that
employers filed extension-of-stay petitions for 63 percent of CW-1
workers in FYs 2016-18, indicating that those CW-1 workers were already
living in the CNMI. Therefore, the DOL projects that 37 percent of CW-1
workers will travel to the CNMI from their country of origin in FY 2019
through the first quarter of FY 2030.
---------------------------------------------------------------------------
\60\ Source: U.S. Department of Homeland Security, U.S.
Citizenship and Immigration Services, unpublished table.
---------------------------------------------------------------------------
b. Estimated Number of Corresponding U.S. Workers
To estimate the number of corresponding U.S. workers in the CNMI in
FY 2019 through the first quarter of FY 2030, the Department used 2016
data from the CNMI Department of Commerce on the number of U.S.
citizens and non-U.S. citizens by major occupation.\61\ The Department
calculated the ratios of the number of U.S. citizens to non-U.S.
citizens by major occupation, and then applied those ratios to the
pertinent number of CW-1 workers in each detailed occupation in FY
2018. Totaling these results, the Department estimates that there were
8,353 corresponding U.S. workers in FY 2018.\62\ This estimate remains
constant throughout the analysis because the Department does not expect
the number of corresponding U.S. workers to decrease; in fact, the
number may increase.
---------------------------------------------------------------------------
\61\ CNMI Department of Commerce, Statistical Yearbook 2017,
Table 5.24 ``Average Hourly Wages by Occupation and Citizenship,
CNMI: 2016,'' http://ver1.cnmicommerce.com/sy-2017-table-5-17-31-wage-survey/.
\62\ Source: U.S. Department of Homeland Security, U.S.
Citizenship and Immigration Services, unpublished table.
---------------------------------------------------------------------------
c. Compensation Rates
Exhibit 3 presents the hourly compensation rates for the
occupational categories that are expected to experience an increase in
workload due to the provisions of the IFR. The Department used the mean
hourly wage rate for private sector Human Resources
[[Page 12417]]
Managers and Translators in the CNMI.\63\ These hourly wage rates
include benefits. The Department adjusted the 2016 CNMI wages to 2018
dollars, and then increased them by 17 percent to account for overhead
costs such as rent, utilities, and office equipment.\64\
---------------------------------------------------------------------------
\63\ Source: CNMI Department of Commerce, ``2016 CNMI Prevailing
Wage and Workforce Assessment Study,'' http://i2io42u7ucg3bwn5b3l0fquc.wpengine.netdna-cdn.com/wp-content/uploads/2017/09/2016-PWWAS-Report-One-Full-Report-v1.1-1.pdf. The wage rates
used here ``include all applicable fringe benefits.''
\64\ Source: Cody Rice, U.S. Environmental Protection Agency,
``Wage Rates for Economic Analyses of the Toxics Release Inventory
Program'' (June 10, 2002), https://www.regulations.gov/document?D=EPA-HQ-OPPT-2014-0650-0005.
---------------------------------------------------------------------------
The wage rates of Federal employees at NPWC and NPC in Chicago were
estimated using the midpoint (Step 5) for Grade 12 of the General
Schedule in the Chicago locality area.\65\ The Department multiplied
the hourly wage rate by 2 to account for a fringe benefits rate of 69
percent \66\ and an overhead rate of 31 percent.\67\
---------------------------------------------------------------------------
\65\ Source: Office of Personnel Management, ``2018 General
Schedule (GS) Locality Pay Tables,'' https://www.opm.gov/policy-data-oversight/pay-leave/salaries-wages/2018/general-schedule/.
\66\ Source: Congressional Budget Office, ``Comparing the
Compensation of Federal and Private-Sector Employees, 2011 to 2015''
(April 2017), https://www.cbo.gov/publication/52637. The wages of
Federal workers averaged $38.30 per hour over the study period,
while the benefits averaged $26.50 per hour, which is a benefits
rate of 69 percent.
\67\ Source: U.S. Department of Health and Human Services,
``Guidelines for Regulatory Impact Analysis'' (2016), https://aspe.hhs.gov/system/files/pdf/242926/HHS_RIAGuidance.pdf. On page
30, HHS states, ``As an interim default, while HHS conducts more
research, analysts should assume overhead costs (including benefits)
are equal to 100 percent of pretax wages. . . .'' To isolate the
overhead rate, the Department subtracted the benefits rate of 69
percent from the recommended rate of 100 percent.
---------------------------------------------------------------------------
The Department used the hourly compensation rates presented in
Exhibit 3 throughout this analysis to estimate the labor costs for each
provision.
Exhibit 3--Compensation Rates
[2018 dollars]
----------------------------------------------------------------------------------------------------------------
Hourly
Position Grade level Base hourly Loaded wage compensation
wage rate factor rate
(a) (b) a x b
----------------------------------------------------------------------------------------------------------------
CNMI Private Sector Employees:
Human Resources Manager..................... N/A $20.08 1.17 $23.49
Translator.................................. N/A $16.01 1.17 18.73
Federal Government Employees:
NPWC Staff.................................. 12 44.02 2 88.04
NPC Staff................................... 12 44.02 2 88.04
----------------------------------------------------------------------------------------------------------------
4. Subject-by-Subject Analysis
The Department's subject-by-subject analysis covers the estimated
costs and transfer payments of the IFR. In accordance with Circular A-
4, the Department considers transfer payments to be payments from one
group to another that do not affect the total resources available to
society.
a. Costs
The following sections describe the costs of the IFR. The costs of
the IFR may vary with the size of the CW-1 employers in the CNMI. As
such, the Department requests comments from the public on the
distribution of participating CW-1 firms by size.
(1) Rule Familiarization
When the IFR takes effect, employers of CW-1 workers will need to
familiarize themselves with the new regulations, thereby incurring a
one-time cost in the first year. To estimate the first-year cost of
rule familiarization, the Department multiplied the estimated number of
unique CW-1 employers in FY 2019 (2,404) by the estimated amount of
time required to review the rule based on the Department's experience
with other TLC programs (1 hour) and by the hourly compensation rate of
Human Resources Managers ($23.49 per hour). This calculation results in
a one-time undiscounted cost of $56,470 (= 2,404 employers x 1 hour x
$23.49 per hour). The annualized cost over the 11.25-year period is
estimated at $5,814 at a discount rate of 3 percent and $6,933 at a
discount rate of 7 percent. The total cost over the 11.25-year period
is estimated at $54,825 at a discount rate of 3 percent and $52,776 at
a discount rate of 7 percent.
(2) Recordkeeping
The IFR requires that all CW-1 employers filing a CW-1 Application
for Temporary Employment Certification retain documents and records for
a period of 3 years from the date of certification. Employers may keep
these documents and records electronically. Based on the Department's
experience administering other TLC programs, the documents and records
to be retained by the employer are critical to ensuring an appropriate
level of integrity and accountability in the CW-1 program, and to
protecting the wages, benefits, and other guarantees afforded to CW-1
workers and workers in corresponding employment. For purposes of this
analysis, the Department assumes that employers will not retain these
documents and records electronically, although they are permitted to do
so. Therefore, the following recordkeeping costs may be an
overestimation.
To calculate the estimated recordkeeping costs associated with
purchasing a filing cabinet for document retention, the Department
multiplied the number of unique CW-1 employers in FY 2019 (2,404) by
the estimated cost of a filing cabinet ($89.99),\68\ which equals
$216,336. This cost is assumed to be a one-time cost in the first year.
The annualized cost over the 11.25-year period is estimated at $22,273
at a discount rate of 3 percent and $26,559 at a discount rate of 7
percent. The total cost over the 11.25-year period is estimated at
$210,035 at a discount rate of 3 percent and $202,183 at a discount
rate of 7 percent.
---------------------------------------------------------------------------
\68\ Source: https://www.staples.com/staples-2-drawer-vertical-file-cabinet-charcoal-letter-18-d-52143/product_2806760.
---------------------------------------------------------------------------
To estimate the recordkeeping costs associated with printing CW-1
applications, the Department multiplied the number of projected CW-1
applications in each year by the
[[Page 12418]]
estimated number of pages in a CW-1 application (30 pages) and by the
estimated paper and printing cost ($0.09 per page) to estimate the
total cost of printing applications. For example, the projected number
of CW-1 applications in FY 2019 is 8,636, so the estimated FY 2019 cost
is $23,317 (= 8,636 applications x 30 pages x $0.09 per page). The
annualized cost over the 11.25-year period is estimated at $17,354 at a
discount rate of 3 percent and $17,925 at a discount rate of 7 percent.
The total cost over the 11.25-year period is estimated at $163,647 at a
discount rate of 3 percent and $136,454 at a discount rate of 7
percent.
To calculate the estimated recordkeeping costs associated with a
Human Resources Manager printing and filing documents, the Department
multiplied the projected number of CW-1 applications in each year by
the estimated time required to print and file documents (20 minutes)
and by the hourly compensation rate for Human Resources Managers
($23.49 per hour). For example, the projected number of CW-1
applications in FY 2019 is 8,636, so the estimated FY 2019 cost is
$66,944 (= 8,636 applications x 20 minutes x $23.49 per hour). The
annualized cost over the 11.25-year period is estimated at $49,824 at a
discount rate of 3 percent and $51,462 at a discount rate of 7 percent.
The total cost over the 11.25-year period is estimated at $469,832 at a
discount rate of 3 percent and $391,758 at a discount rate of 7
percent.
(3) Applications
(a) Electronic Filing of Request for Prevailing Wage Determination
The IFR establishes the process by which employers obtain a TLC
from the Department for use in petitioning DHS to employ a nonimmigrant
worker in CW-1 status, which involves four basic steps. First, the
employer must request and obtain a PWD from the Department's OFLC NPWC
before filing a CW-1 Application for Temporary Employment
Certification. To make this request, the employer will submit a
completed Application for Prevailing Wage Determination to the NPWC
containing information about the job opportunity in which the
nonimmigrant workers will be employed. Based on a review of the
information provided by the employer, the NPWC will issue a PWD,
indicate the source and validity period for its use, and return the
application with its endorsement to the employer.
To estimate the labor costs to employers associated with
electronically filing a PWD request, the Department multiplied the
number of projected CW-1 applications in each year by the estimated
time required to file the request based on the Department's experience
with other TLC programs (46 minutes) and by the hourly compensation
rate for Human Resources Managers ($23.49 per hour). For example, the
projected number of CW-1 applications in FY 2019 is 8,636, so the
estimated FY 2019 cost is $156,202 (= 8,636 applications x 46 minutes x
$23.49 per hour). The annualized cost over the 11.25-year period is
estimated at $116,255 at a discount rate of 3 percent and $120,079 at a
discount rate of 7 percent. The total cost over the 11.25-year period
is estimated at $1,096,274 at a discount rate of 3 percent and $914,102
at a discount rate of 7 percent.
To estimate the labor costs to the Federal Government associated
with reviewing PWD requests and issuing PWDs, the Department multiplied
the number of projected CW-1 applications in each year by the estimated
time required to review a PWD request and issue a PWD (1 hour) and by
the hourly compensation rate for NPWC staff ($88.04 per hour). For
example, the projected number of CW-1 applications in FY 2019 is 8,636,
so the estimated FY 2019 cost is $760,313 (= 8,636 applications x 1
hour x $88.04 per hour). The annualized cost over the 11.25-year period
is estimated at $565,871 at a discount rate of 3 percent and $584,485
at a discount rate of 7 percent. The total cost over the 11.25-year
period is estimated at $5,336,117 at a discount rate of 3 percent and
$4,449,397 at a discount rate of 7 percent.
(b) Appealing a Prevailing Wage Determination
An employer that does not agree with a PWD may appeal under 20 CFR
655.411. The employer must make a written request to the NPWC Director
within 7 business days from the date the PWD was issued.
To estimate the labor costs associated with filing an appeal of a
PWD, the Department multiplied the number of projected CW-1
applications in each year by the estimated percentage of applications
that will involve an appeal based on the Department's experience with
other TLC programs (5 percent of applications). Then, the Department
multiplied this number by the estimated time required to comply with
this provision (1 hour) and by the hourly compensation rate for Human
Resources Managers ($23.49 per hour). For example, the projected number
of CW-1 applications in FY 2019 is 8,636, so the estimated FY 2019 cost
is $10,143 (= 8,636 applications x 5 percent x 1 hour x $23.49 per
hour). The annualized cost over the 11.25-year period is estimated at
$7,549 at a discount rate of 3 percent and $7,797 at a discount rate of
7 percent. The total cost over the 11.25-year period is estimated at
$71,187 at a discount rate of 3 percent and $59,357 at a discount rate
of 7 percent.
(c) Electronic Filing of CW-1 Application
Next, the IFR requires the employer to file a completed CW-1
Application for Temporary Employment Certification with the OFLC NPC no
more than 120 calendar days before the date of need or, for employers
seeking to extend the employment of a CW-1 worker, no more than 180
calendar days before the date on which the CW-1 status expires. The NPC
CO will review the employer's application for compliance with all
applicable program requirements and issue either a NOD or NOA. Where
deficiencies in the application are discovered, the NOD will provide
the employer with 10 business days to correct the deficiencies.
To calculate the estimated labor costs associated with
electronically filing a CW-1 application, the Department multiplied the
number of projected CW-1 applications in each year by the estimated
time required to file the application (45 minutes) and by the hourly
compensation rate for Human Resources Managers ($23.49 per hour). For
example, the projected number of CW-1 applications in FY 2019 is 8,636,
so the estimated FY 2019 cost is $152,145 (= 8,636 applications x 45
minutes x $23.49 per hour). The annualized cost over the 11.25-year
period is estimated at $113,235 at a discount rate of 3 percent and
$116,960 at a discount rate of 7 percent. The total cost over the
11.25-year period is estimated at $1,067,799 at a discount rate of 3
percent and $890,359 at a discount rate of 7 percent.
To estimate the labor costs to the Federal Government associated
with reviewing applications and issuing initial determinations, the
Department multiplied the number of projected CW-1 applications in each
year by the estimated time required to review an application and issue
an initial determination (1 hour) and by the hourly compensation rate
for OFLC NPC staff ($88.04 per hour). For example, the projected number
of CW-1 applications in FY 2019 is 8,636, so the estimated FY 2019 cost
is $760,313 (= 8,636 applications x 1 hour x $88.04 per hour). The
annualized cost over the 11.25-year period is estimated at
[[Page 12419]]
$565,871 at a discount rate of 3 percent and $584,485 at a discount
rate of 7 percent. The total cost over the 11.25-year period is
estimated at $5,336,117 at a discount rate of 3 percent and $4,449,397
at a discount rate of 7 percent.
(d) Proof of Agent Relationship
The IFR requires all agents who file CW-1 applications on behalf of
employers to demonstrate that a bona fide relationship exists between
them and the employer. The Department will accept a copy of the agent
agreement or any other document demonstrating the agent's authority to
act on behalf of the employer.
To estimate the labor costs associated with creating, printing,
signing, and delivering a document confirming the agent relationship,
the Department multiplied the number of projected CW-1 employers in
each year by the estimated percentage of employers that will be
represented based on the Department's experience with other TLC
programs (25 percent of employers). Then, the Department multiplied
this number by the estimated time required to comply with this
provision (30 minutes) and by the hourly compensation rate for Human
Resources Managers ($23.49 per hour). For example, the projected number
of CW-1 employers in FY 2019 is 2,404, so the estimated FY 2019 cost is
$7,059 (= 2,404 employers x 25 percent x 30 minutes x $23.49 per hour).
The annualized cost over the 11.25-year period is estimated at $5,260
at a discount rate of 3 percent and $5,433 at a discount rate of 7
percent. The total cost over the 11.25-year period is estimated at
$49,603 at a discount rate of 3 percent and $41,359 at a discount rate
of 7 percent.
(e) Contracts With Third Parties To Comply With Prohibitions
The IFR requires employers to prohibit in a written contract any
agent or recruiter whom the employer engages in recruitment of CW-1
workers, from seeking or receiving payments or other compensation from
prospective workers. The required contractual prohibition applies to
the agents and employees of the recruiting agent, and encompasses both
direct and indirect fees.
To estimate the labor costs associated with creating, printing,
signing, and delivering the written contract, the Department multiplied
the number of projected CW-1 employers in each year by the estimated
percentage of employers that will use an agent or recruiter based on
the Department's experience with other TLC programs (55 percent of
employers). Then, the Department multiplied this number by the
estimated time required to comply with this provision (15 minutes) and
by the hourly compensation rate for Human Resources Managers ($23.49
per hour). For example, the projected number of CW-1 employers in FY
2019 is 2,404, so the estimated FY 2019 cost is $7,765 (= 2,404
employers x 55 percent x 15 minutes x $23.49 per hour). The annualized
cost over the 11.25-year period is estimated at $5,786 at a discount
rate of 3 percent and $5,976 at a discount rate of 7 percent. The total
cost over the 11.25-year period is estimated at $54,564 at a discount
rate of 3 percent and $45,495 at a discount rate of 7 percent.
(f) Appendix A of Form ETA-9142C, Employer-Client Information of Job
Contractor
The IFR requires an employer filing as a job contractor and acting
as a joint employer with its employer-client to submit a single
application. In filing the application, the job contractor must
disclose the identity and contact information of its employer-client by
completing Appendix A.
To estimate the labor costs associated with completing Appendix A,
the Department multiplied the number of projected CW-1 applications in
each year by the estimated percentage of applications that will include
Appendix A based on the Department's experience with other TLC programs
(35 percent of applications). Then, the Department multiplied this
number by the estimated time required to comply with this provision (15
minutes) and by the hourly compensation rate for Human Resources
Managers ($23.49 per hour). For example, the projected number of CW-1
applications in FY 2019 is 8,636, so the estimated FY 2019 cost is
$17,750 (= 8,636 applications x 35 percent x 15 minutes x $23.49 per
hour). The annualized cost over the 11.25-year period is estimated at
$13,211 at a discount rate of 3 percent and $13,645 at a discount rate
of 7 percent. The total cost over the 11.25-year period is estimated at
$124,577 at a discount rate of 3 percent and $103,875 at a discount
rate of 7 percent.
(g) Appendix B of Form ETA-9142C, Additional Place(s) of Employment and
Wage Information
If work needs to be performed at worksite locations other than the
primary one identified on Form ETA-9142C, the employer must complete
Appendix B identifying all places of employment and details about the
wage offers for each of those places of employment. OFLC will use this
information to ensure all places of employment are located within the
CNMI and that the employer is offering wages that are at least equal to
the prevailing wage covering each place of employment.
To estimate the labor costs associated with completing Appendix B,
the Department multiplied the number of projected CW-1 applications in
each year by the estimated percentage of applications that will include
Appendix B based on the Department's experience with other TLC programs
(70 percent of applications). Then, the Department multiplied this
number by the estimated time required to comply with this provision (20
minutes) and by the hourly compensation rate for Human Resources
Managers ($23.49 per hour). For example, the projected number of CW-1
applications in FY 2019 is 8,636, so the estimated FY 2019 cost is
$46,861 (= 8,636 applications x 70 percent x 20 minutes x $23.49 per
hour). The annualized cost over the 11.25-year period is estimated at
$34,876 at a discount rate of 3 percent and $36,024 at a discount rate
of 7 percent. The total cost over the 11.25-year period is estimated at
$328,882 at a discount rate of 3 percent and $274,231 at a discount
rate of 7 percent.
(h) Appendix C of Form ETA-9142C, Attorney/Agent/Employer Declarations
The IFR requires an employer to complete Appendix C to attest to
compliance with all of the terms, assurances, and obligations of the
CW-1 program. The agent or attorney identified in the CW-1 Application
for Temporary Employment Certification must also sign and date Appendix
C, declaring that it has been designated by the employer to act on the
employer's behalf.
To estimate the labor costs associated with completing Appendix C,
the Department multiplied the number of projected CW-1 applications in
each year by the estimated time required to comply with this provision
(20 minutes) and by the hourly compensation rate for Human Resources
Managers ($23.49 per hour). For example, the projected number of CW-1
applications in FY 2019 is 8,636, so the estimated FY 2019 cost is
$66,944 (= 8,636 applications x 20 minutes x $23.49 per hour). The
annualized cost over the 11.25-year period is estimated at $49,824 at a
discount rate of 3 percent and $51,462 at a discount rate of 7 percent.
The total cost over the 11.25-year period is estimated at $469,832 at a
discount rate
[[Page 12420]]
of 3 percent and $391,758 at a discount rate of 7 percent.
(i) Request for Waiver of Obtaining PWD Due to Emergency Situation
The IFR permits an employer that is unable to obtain a PWD prior to
filing an application to request a waiver by submitting a letter of
explanation along with the completed application. The employer must
provide a detailed statement describing the good and substantial cause
that necessitated the waiver request. This provision provides an
employer experiencing a qualifying emergency situation with some degree
of flexibility to participate in the CW-1 program without first
obtaining a PWD from the NPWC.
To estimate the labor costs associated with composing and
submitting a waiver request, the Department multiplied the number of
projected CW-1 applications in each year by the estimated percentage of
applications that will include a waiver request based on the
Department's experience with other TLC programs (10 percent of
applications). (10 percent of applications). Then, the Department
multiplied this number by the estimated time required to comply with
this provision (30 minutes) and by the hourly compensation rate for
Human Resources Managers ($23.49 per hour). For example, the projected
number of CW-1 applications in FY 2019 is 8,636, so the estimated FY
2019 cost is $10,143 (= 8,636 applications x 10 percent x 30 minutes x
$23.49 per hour). The annualized cost over the 11.25-year period is
estimated at $7,549 at a discount rate of 3 percent and $7,797 at a
discount rate of 7 percent. The total cost over the 11.25-year period
is estimated at $71,187 at a discount rate of 3 percent and $59,357 at
a discount rate of 7 percent.
(j) Submission of a Modified Application
The IFR permits an employer to modify and resubmit its application
to address insufficiencies listed in the NOD. The employer must respond
to the NOD and correct any deficiencies within 10 business days of
issuance.
To estimate the labor costs associated with modifying an
application, the Department multiplied the number of projected CW-1
applications in each year by the estimated percentage of applications
that will be modified based on the Department's experience with other
TLC programs (one-third of applications). Then, the Department
multiplied this number by the estimated time required to comply with
this provision (1 hour) and by the hourly compensation rate for Human
Resources Managers ($23.49 per hour). For example, the projected number
of CW-1 applications in FY 2019 is 8,636, so the estimated FY 2019 cost
is $67,620 (= 8,636 applications x 33.3 percent x 1 hour x $23.49 per
hour). The annualized cost over the 11.25-year period is estimated at
$50,327 at a discount rate of 3 percent and $51,982 at a discount rate
of 7 percent. The total cost over the 11.25-year period is estimated at
$474,577 at a discount rate of 3 percent and $395,715 at a discount
rate of 7 percent.
(k) Amending the Application
The IFR permits an employer to request to amend its application at
any time before the Department makes a final determination to grant or
deny the application. The employer may request to increase the number
of workers requested, modify the period of employment, or request other
minor changes to the application.
To estimate the labor costs associated with amending an
application, the Department multiplied the number of projected CW-1
applications in each year by the estimated percentage of applications
that will be amended based on the Department's experience with other
TLC programs (15 percent of applications). Then, the Department
multiplied this number by the estimated time required to comply with
this provision (30 minutes) and by the hourly compensation rate for
Human Resources Managers ($23.49 per hour). For example, the projected
number of CW-1 applications in FY 2019 is 8,636, so the estimated FY
2019 cost is $15,214 (= 8,636 applications x 15 percent x 30 minutes x
$23.49 per hour). The annualized cost over the 11.25-year period is
estimated at $11,324 at a discount rate of 3 percent and $11,696 at a
discount rate of 7 percent. The total cost over the 11.25-year period
is estimated at $106,780 at a discount rate of 3 percent and $89,036 at
a discount rate of 7 percent.
(l) Posting the Job With the CNMI Department of Labor
If all program requirements are met, the employer will receive a
NOA from the CO directing the recruitment of U.S. workers for the job
opportunity and requesting a written report of the employer's
recruitment efforts. To encourage the hiring of U.S. workers for
employment in the CNMI, the employer will be required to advertise the
job opportunity on the CNMI Department of Labor's job listing system.
To calculate the estimated labor costs associated with posting a
job opportunity with the CNMI Department of Labor, the Department
multiplied the number of projected CW-1 applications in each year by
the estimated time required to post the job ad (1 hour) and by the
hourly compensation rate for Human Resources Managers ($23.49 per
hour). For example, the projected number of CW-1 applications in FY
2019 is 8,636, so the estimated FY 2019 cost is $202,860 (= 8,636
applications x 1 hour x $23.49 per hour). The annualized cost over the
11.25-year period is estimated at $150,980 at a discount rate of 3
percent and $155,947 at a discount rate of 7 percent. The total cost
over the 11.25-year period is estimated at $1,423,732 at a discount
rate of 3 percent and $1,187,146 at a discount rate of 7 percent.
(m) Contacting Former U.S. Employees
As part of an employer's recruitment efforts and to encourage the
hiring of U.S. workers, the IFR requires employers to contact former
U.S. employees and solicit their return to the job.
To estimate the labor costs associated with contacting former U.S.
employees regarding the job opportunity, the Department multiplied the
number of projected CW-1 applications in each year by the estimated
number of former U.S. employees that will be contacted based on the
Department's experience with other TLC programs (an average of 1.5
former U.S. employees per application). Then, the Department multiplied
this number by the estimated time required to comply with this
provision (1 hour) and by the hourly compensation rate for Human
Resources Managers ($23.49 per hour). For example, the projected number
of CW-1 applications in FY 2019 is 8,636, so the estimated FY 2019 cost
is $304,289 (= 8,636 applications times; 1.5 former U.S. employees x 1
hour x $23.49 per hour). The annualized cost over the 11.25-year period
is estimated at $226,471 at a discount rate of 3 percent and $233,920
at a discount rate of 7 percent. The total cost over the 11.25-year
period is estimated at $2,135,598 at a discount rate of 3 percent and
$1,780,719 at a discount rate of 7 percent.
(n) Posting a Job Notice
As part of an employer's recruitment efforts and to encourage the
hiring of U.S. workers, the IFR requires employers to post a copy of
the CW-1 Application for Temporary Employment Certification in at least
two conspicuous locations at the place(s) of employment or in some
other manner that provides reasonable notification to all employees
[[Page 12421]]
in the area in which the work will be performed by the CW-1 workers.
To estimate the labor costs associated with posting a notice of the
job, the Department multiplied the number of projected CW-1
applications in each year by the estimated time required to post the
notice (30 minutes) and by the hourly compensation rate for Human
Resources Managers ($23.49 per hour). For example, the projected number
of CW-1 applications in FY 2019 is 8,636, so the estimated FY 2019 cost
is $101,430 (= 8,636 applications x 30 minutes x $23.49 per hour). The
annualized cost over the 11.25-year period is estimated at $75,490 at a
discount rate of 3 percent and $77,973 at a discount rate of 7 percent.
The total cost over the 11.25-year period is estimated at $711,866 at a
discount rate of 3 percent and $593,573 at a discount rate of 7
percent.
(o) Additional Recruitment
As part of an employer's recruitment efforts and to encourage the
hiring of U.S. workers, the IFR requires employers to conduct other
recruitment activities such as contacting community-based organization
or trade unions when required by the CO.
To estimate the labor costs associated with conducting additional
recruiting if ordered by the CO, the Department multiplied the number
of projected CW-1 applications in each year by the estimated percentage
of applications that will require additional recruitment based on the
Department's experience with other TLC programs (35 percent of
applications). Then, the Department multiplied this number by the
estimated time required to make the additional outreach based on the
Department's experience with other TLC programs (15 minutes) and by the
hourly compensation rate for Human Resources Managers ($23.49 per
hour). For example, the projected number of CW-1 applications in FY
2019 is 8,636, so the estimated FY 2019 cost is $17,750 (= 8,636
applications x 35 percent x 15 minutes x $23.49 per hour). The
annualized cost over the 11.25-year period is estimated at $13,211 at a
discount rate of 3 percent and $13,645 at a discount rate of 7 percent.
The total cost over the 11.25-year period is estimated at $124,577 at a
discount rate of 3 percent and $103,875 at a discount rate of 7
percent.
(p) Electronic Submission of Recruitment Report
The recruitment period will last approximately 21 calendar days and
all employer-conducted recruitment must be completed before the written
recruitment report can be prepared, signed, and submitted to the NPC
for review. Upon review of the recruitment report, the CO will make a
determination either to certify or to deny the CW-1 Application for
Temporary Employment Certification. The employer will use the Final
Determination notice and any other required documentation to support
the filing of a CW-1 petition with USCIS.
To estimate the labor costs associated with electronically
submitting a recruitment report, the Department multiplied the number
of projected CW-1 applications in each year by the estimated time
required to file the report (1 hour) and by the hourly compensation
rate for Human Resources Managers ($23.49 per hour). For example, the
projected number of CW-1 applications in FY 2019 is 8,636, so the
estimated FY 2019 cost is $202,860 (= 8,636 applications x 1 hour x
$23.49 per hour). The annualized cost over the 11.25-year period is
estimated at $150,980 at a discount rate of 3 percent and $155,947 at a
discount rate of 7 percent. The total cost over the 11.25-year period
is estimated at $1,423,732 at a discount rate of 3 percent and
$1,187,146 at a discount rate of 7 percent.
To estimate the labor costs to the Federal Government associated
with reviewing recruitment reports and issuing final determinations,
the Department multiplied the number of projected CW-1 applications in
each year by the estimated time required to review a recruitment report
and issue a final determination (1 hour) and by the hourly compensation
rate for OFLC NPC staff ($88.04 per hour). For example, the projected
number of CW-1 applications in FY 2019 is 8,636, so the estimated FY
2019 cost is $760,313 (= 8,636 applications x 1 hour x $88.04 per
hour). The annualized cost over the 11.25-year period is estimated at
$565,871 at a discount rate of 3 percent and $584,485 at a discount
rate of 7 percent. The total cost over the 11.25-year period is
estimated at $5,336,117 at a discount rate of 3 percent and $4,449,397
at a discount rate of 7 percent.
(q) Translating the Work Contract
The IFR contains provisions related to the disclosure of the work
contract. The employer is required to provide a copy of the work
contract to a CW-1 worker outside of the United States no later than
the time at which the worker applies for the visa, or to a worker in
corresponding employment no later than on the day the work commences.
For a CW-1 worker changing to another CW-1 employer, the work contract
must be provided no later than the time the subsequent offer of
employment is made. The work contract must be provided in a language
understood by the worker. The costs associated with the disclosure
requirements include translating costs, time and materials costs, and
postage costs.
To estimate the labor costs associated with translating the work
contract, the Department multiplied the number of projected CW-1
applications in each year by the estimated time required to translate
the work contract (1 hour) and by the hourly compensation rate for
Translators ($18.73 per hour). For example, the projected number of CW-
1 applications in FY 2019 is 8,636, so the estimated FY 2019 cost is
$161,752 (= 8,636 applications x 1 hour x $18.73 per hour). The
annualized cost over the 11.25-year period is estimated at $120,386 at
a discount rate of 3 percent and $124,346 at a discount rate of 7
percent. The total cost over the 11.25-year period is estimated at
$1,135,228 at a discount rate of 3 percent and $946,583 at a discount
rate of 7 percent.
(r) Reproducing the Work Contract
To estimate the labor costs associated with reproducing the work
contract, the Department added the projected number of CW-1 workers in
each year to the estimated number of corresponding U.S. workers (8,353
U.S. workers). The Department then multiplied the estimated total
number of workers in each year by the amount of time required to
reproduce each work contract (5 minutes) and by the hourly compensation
rate for Human Resources Managers ($23.49 per hour). For example, the
projected number of CW-1 workers in FY 2019 is 13,000 and the projected
number of U.S. workers is 8,353, which totals 21,353 workers. So, the
estimated FY 2019 labor cost is $41,631 (= 21,353 workers x 5 minutes x
$23.49 per hour).
To estimate the materials costs associated with reproducing the
work contract, the Department again added the projected number of CW-1
workers in each year to the estimated number of corresponding U.S.
workers (8,353 U.S. workers). The Department then multiplied the
estimated total number of workers in each year by the estimated length
of a work contract (3 pages) and by the estimated per-page printing
cost ($0.09). For example, the projected number of CW-1 and U.S.
workers in FY 2019 is 21,353, so the estimated FY 2019 materials cost
is $5,765 (= 21,353 workers x 3 pages x $0.09 per page).
Combining the labor and materials costs for reproducing the work
contract,
[[Page 12422]]
the first-year cost is estimated at $47,397 (= $41,631 + $5,765). The
annualized cost over the 11.25-year period is estimated at $41,049 at a
discount rate of 3 percent and $41,529 at a discount rate of 7 percent.
The total cost over the 11.25-year period is estimated at $387,085 at a
discount rate of 3 percent and $316,138 at a discount rate of 7
percent.
(s) Mailing the Work Contracts
To estimate the labor costs associated with mailing work contracts
to workers, the Department first added the projected number of CW-1
workers in each year to the estimated number of corresponding U.S.
workers (8,353 U.S. workers). The Department then multiplied the
estimated total number of workers in each year by the amount of time
required to mail each work contract (10 minutes) and by the hourly
compensation rate for Human Resources Managers ($23.49 per hour). For
example, the projected number of CW-1 workers in FY 2019 is 13,000 and
the projected number of U.S. workers is 8,353, which totals 21,353
workers. So, the estimated FY 2019 labor cost is $83,764 (= 21,353
workers x 10 minutes x $23.49 per hour).
To estimate the postage costs associated with mailing work
contracts to CW-1 workers not living in the CNMI, the Department
multiplied the projected number of CW-1 workers in each year by the
estimated percentage of CW-1 workers not currently living in the CNMI
(37 percent) and by the estimated international postage cost ($1.15).
For example, the projected number of CW-1 workers in FY 2019 is 13,000,
so the estimated FY 2019 cost to employers for mailing work contracts
to CW-1 workers not living in the CNMI is $5,532 (= 13,000 CW-1 workers
x 37 percent x $1.15 per work contract).
To estimate the postage costs associated with mailing work
contracts to workers currently in the CNMI, the Department multiplied
the projected number of CW-1 workers by the estimated percentage of CW-
1 workers currently in the CNMI (63 percent) and then added the
estimated number of corresponding U.S. workers (8,353 U.S. workers) to
obtain the total number of work contracts to be mailed within the CNMI.
The Department multiplied this estimate by the current cost of a U.S.
postage stamp ($0.50). For example, the projected number of CW-1
workers in FY 2019 is 13,000, so the estimated number of CW-1 workers
currently in the CNMI is 8,190 (= 13,000 x 63 percent). Combined with
8,353 U.S. workers, the total number of workers in the CNMI who would
be mailed a work contract in FY 2019 is estimated to be 16,543.
Accordingly, the estimated FY 2019 cost to employers for mailing work
contracts within the CNMI is $8,272 (= 16,543 workers x $0.50 per work
contract).
Combining the labor and materials costs for mailing the work
contract, the first-year cost is estimated at $97,568 (= $83,764 +
$5,532 + $8,272). The annualized cost over the 11.25-year period is
estimated at $84,119 at a discount rate of 3 percent and $85,152 at a
discount rate of 7 percent. The total cost over the 11.25-year period
is estimated at $793,235 at a discount rate of 3 percent and $648,223
at a discount rate of 7 percent.
(t) Notification of Abandonment or Termination
The IFR requires employers to notify the Department when any of
their CW-1 workers voluntarily abandons the job or is terminated before
the certified end date of employment. This task involves writing an
email message to the Department to meet this requirement.
To estimate the labor costs associated with notifying the
Department of abandonment or termination of employment, the Department
multiplied the number of projected CW-1 applications in each year by
the estimated percentage of applications that will be affected by this
requirement based on the Department's experience with other TLC
programs (5 percent of applications). Then, the Department multiplied
this number by the estimated time required to comply with this
provision (10 minutes) and by the hourly compensation rate for Human
Resources Managers ($23.49 per hour). For example, the projected number
of CW-1 applications in FY 2019 is 8,636, so the estimated FY 2019 cost
is $1,694 (= 8,636 applications x 5 percent x 10 minutes x $23.49 per
hour). The annualized cost over the 11.25-year period is estimated at
$1,261 at a discount rate of 3 percent and $1,302 at a discount rate of
7 percent. The total cost over the 11.25-year period is estimated at
$11,888 at a discount rate of 3 percent and $9,913 at a discount rate
of 7 percent.
(u) Extension of the Certified Period of Employment
The IFR permits employers, under certain circumstances involving
weather conditions or other factors beyond the control of the employer,
to request in writing an extension of the certified period of
employment. The employer must submit the written request to the CO with
documentation showing that the extension is needed and that the need
could not have been reasonably foreseen by the employer.
To estimate the labor costs associated with requesting an extension
of the certified period of employment, the Department multiplied the
number of projected CW-1 applications in each year by the estimated
percentage of applications for which an extension will be requested
based on the Department's experience with other TLC programs (5 percent
of applications).Then, the Department multiplied this number by the
estimated time required to comply with this provision (30 minutes) and
by the hourly compensation rate for Human Resources Managers ($23.49
per hour). For example, the projected number of CW-1 applications in FY
2019 is 8,636, so the estimated FY 2019 cost is $5,071 (= 8,636
applications x 5 percent x 30 minutes x $23.49 per hour). The
annualized cost over the 11.25-year period is estimated at $3,775 at a
discount rate of 3 percent and $3,899 at a discount rate of 7 percent.
The total cost over the 11.25-year period is estimated at $35,593 at a
discount rate of 3 percent and $29,679 at a discount rate of 7 percent.
(v) Administrative Appeals
The IFR permits an employer that has certification denied to
request administrative review of the decision by BALCA. To do so, an
employer must submit a written request for review within 10 business
days from the date of determination.
To estimate the labor costs associated with seeking administrative
review, the Department multiplied the number of projected CW-1
applications in each year by the estimated percentage of applications
for which administrative review will be requested based on the
Department's experience with other TLC programs (5 percent of
applications). Then, the Department multiplied this number by the
estimated time required to comply with this provision (1 hour) and by
the hourly compensation rate for Human Resources Managers ($23.49 per
hour). For example, the projected number of CW-1 applications in FY
2019 is 8,636, so the estimated FY 2019 cost is $10,143 (= 8,636
applications x 5 percent x 1 hour x $23.49 per hour). The annualized
cost over the 11.25-year period is estimated at $7,549 at a discount
rate of 3 percent and $7,797 at a discount rate of 7 percent. The total
cost over the 11.25-year period is estimated at $71,187 at a discount
rate of 3 percent and $59,357 at a discount rate of 7 percent.
[[Page 12423]]
(w) Request for Withdrawal
The IFR permits employers to request withdrawal of an application
any time after it has been accepted for processing, as long as the
employer complies with the terms and conditions of employment in the
application and work contract with respect to all workers recruited and
hired in connection with that application. The employer must submit a
request in writing to the NPC stating the reason(s) for withdrawal.
To estimate the labor costs associated with requesting withdrawal
of an application, the Department multiplied the number of projected
CW-1 applications in each year by the estimated percentage of
applications that will be withdrawn based on the Department's
experience with other TLC programs (10 percent of applications).).
Then, the Department multiplied this number by the estimated time
required to comply with this provision (10 minutes) and by the hourly
compensation rate for Human Resources Managers ($23.49 per hour). For
example, the projected number of CW-1 applications in FY 2019 is 8,636,
so the estimated FY 2019 cost is $3,388 (= 8,636 applications x 10
percent x 10 minutes x $23.49 per hour). The annualized cost over the
11.25-year period is estimated at $2,521 at a discount rate of 3
percent and $2,604 at a discount rate of 7 percent. The total cost over
the 11.25-year period is estimated at $23,776 at a discount rate of 3
percent and $19,825 at a discount rate of 7 percent.
(x) Certifying Officer-Ordered Assisted Recruitment
If an employer violates the terms of the CW-1 program and the
Department determines that the violation does not warrant debarment,
the CO may require the employer to undergo assisted recruitment for
future applications. This requirement not only protects the integrity
of the CW-1 program but can also be an effective tool to help an
employer that, due to either program inexperience or confusion, commits
an unintentional violation in its application and indicates a need for
assistance from the Department.
To estimate the labor costs associated with conducting assisted
recruitment, the Department multiplied the number of projected CW-1
applications in each year by the estimated percentage of applications
that will be affected by this requirement based on the Department's
experience with other TLC programs (0.5 percent of applications). Then,
the Department multiplied this number by the estimated time required to
comply with this provision (1 hour) and by the hourly compensation rate
for Human Resources Managers ($23.49 per hour). For example, the
projected number of CW-1 applications in FY 2019 is 8,636, so the
estimated FY 2019 cost is $1,014 (= 8,636 applications x 0.5 percent x
1 hour x $23.49 per hour). The annualized cost over the 11.25-year
period is estimated at $755 at a discount rate of 3 percent and $780 at
a discount rate of 7 percent. The total cost over the 11.25-year period
is estimated at $7,119 at a discount rate of 3 percent and $5,936 at a
discount rate of 7 percent.
b. Transfer Payments
This section discusses the quantifiable transfer payments related
to transportation and subsistence costs, as well as the impact on the
wages of CW-1 workers and corresponding U.S. workers.
(1) Transportation and Subsistence Costs
The IFR requires CW-1 employers to pay the inbound transportation
and daily subsistence costs of workers who complete 50 percent of the
job order period and the outbound transportation and subsistence costs
of workers who complete the entire job order period. Reasonable
expenses incurred between a worker's hometown and the consular city are
within the scope of inbound transportation and subsistence costs,
including lodging costs while CW-1 workers travel from their hometown
to the consular city to wait to obtain a visa and from the consular
city to the place of employment. The impacts of requiring CW-1
employers to pay for workers' transportation and subsistence represent
transfers from CW-1 employers to workers because the impacts are
distributional effects, not a change in society's resources.\69\
---------------------------------------------------------------------------
\69\ For the purpose of this analysis, CW-1 workers are
considered temporary residents of the United States.
---------------------------------------------------------------------------
To estimate the transfer payments related to transportation and
subsistence, the Department first calculated the proportion of CW-1
workers from each of the 10 most common countries of origin in FY 2016-
2018. The Department then averaged these proportions and normalized
them to account for the small portion of CW-1 workers in each year
originating from countries other than the 10 most common countries of
origin. These normalized proportions, presented in Exhibit 4, were used
to create weighted averages of travel costs in the analysis below.
Exhibit 4--Average Proportion of Workers by Country of Origin
[FY 2016-2018]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Average Normalized
Country FY 2016 Proportion FY 2017 Proportion FY 2018 Proportion proportion proportion
(percent) (percent) (percent) (percent) (percent)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Philippines..................................... 7,086 53.28 6,497 47.90 6,043 65.02 55.40 56.34
China........................................... 4,844 36.42 5,298 39.06 1,703 18.32 31.27 31.80
South Korea..................................... 433 3.26 380 2.80 374 4.02 3.36 3.42
Bangladesh...................................... 473 3.56 352 2.60 210 2.26 2.80 2.85
Japan........................................... 142 1.07 200 1.47 92 0.99 1.18 1.20
Taiwan.......................................... 35 0.26 240 1.77 276 2.97 1.67 1.70
Malaysia........................................ 26 0.20 200 1.47 202 2.17 1.28 1.30
Vietnam......................................... 4 0.03 116 0.86 95 1.02 0.64 0.65
Thailand........................................ 56 0.42 58 0.43 54 0.58 0.48 0.48
India........................................... 14 0.11 24 0.18 44 0.47 0.25 0.26
-------------------------------------------------------------------------------------------------------
Top 10 Total................................ 13,113 98.60 13,365 98.54 9,093 97.84 98.33 100.00
-------------------------------------------------------------------------------------------------------
[[Page 12424]]
Total....................................... 13,299 100.00 13,563 100.00 9,294 100.00 ........... ...........
--------------------------------------------------------------------------------------------------------------------------------------------------------
The Department estimated total transportation, lodging, and
subsistence costs to and from the CNMI based on four components: (1)
The average estimated cost of a one-way bus or train trip from three
major regional cities to the consular city; (2) the estimated cost of
lodging in the consular city for 1 night; (3) the minimum daily
subsistence amount for workers traveling to their place of employment;
and (4) the estimated cost of a one-way flight from the consular city
to Saipan. The Department estimated the total one-way cost from each
country of origin by adding these four components and then estimating a
weighted average total one-way travel cost by multiplying the total
one-way travel cost from each country of origin with the appropriate
normalized weight from Exhibit 4 and summing the resulting weighted
costs. The Department estimated the total round-trip travel costs by
multiplying the weighted average total one-way travel cost by two.
These figures are presented in Exhibit 5.
Exhibit 5--Estimated Cost of Travel for CW-1 Workers
------------------------------------------------------------------------
Cost (2018
Item dollars)
------------------------------------------------------------------------
Philippines
------------------------------------------------------------------------
One-way travel--within Manila......................... $0.00
One-way travel--Quezon City to Manila................. 1.00
One-way travel--Caloocan to Manila.................... 1.00
-----------------
Average--Home city to Manila...................... 0.67
Lodging Cost--Manila.................................. 1.47
Meals................................................. 12.26
One-way travel--Manila to Saipan...................... 397.00
-----------------
Total one-way travel.............................. 411.40
------------------------------------------------------------------------
China
------------------------------------------------------------------------
One-way travel--within Beijing........................ 0.00
One-way travel--Chongqing to Beijing.................. 77.00
One-way travel--Shanghai to Beijing................... 87.50
-----------------
Average--Home city to Beijing..................... 54.83
Lodging cost--Beijing................................. 8.74
Meals................................................. 12.26
One-way travel--Beijing to Saipan..................... 410.20
-----------------
Total one-way travel.............................. 486.03
------------------------------------------------------------------------
South Korea
------------------------------------------------------------------------
One-way travel--within Seoul.......................... 0.00
One-way travel--Busan to Seoul........................ 27.00
One-way travel--Incheon to Seoul...................... 1.50
-----------------
Average--Home city to Seoul....................... 9.50
Lodging cost--Seoul................................... 9.01
Meals................................................. 12.26
One-way travel--Seoul to Saipan....................... 206.00
-----------------
Total one-way travel.............................. 236.77
------------------------------------------------------------------------
Bangladesh
------------------------------------------------------------------------
One-way travel--within Dhaka.......................... 0.00
One-way travel--Sylhet to Dhaka....................... 6.00
One-way travel--Chittagong to Dhaka................... 12.00
-----------------
Average--Home city to Dhaka....................... 6.00
Lodging cost--Dhaka................................... 15.00
Meals................................................. 12.26
One-way travel--Dhaka to Saipan....................... 970.00
-----------------
[[Page 12425]]
Total one-way travel.............................. 1,003.26
------------------------------------------------------------------------
Japan
------------------------------------------------------------------------
One-way travel--within Tokyo.......................... 0.00
One-way travel--Yokohama to Tokyo..................... 5.50
One-way travel--Osaka to Tokyo........................ 60.00
-----------------
Average--Home city to Tokyo....................... 21.83
Lodging cost--Tokyo................................... 12.26
Meals................................................. 12.26
One-way travel--Tokyo to Saipan....................... 336.00
-----------------
Total one-way travel.............................. 382.35
------------------------------------------------------------------------
Taiwan
------------------------------------------------------------------------
One-way travel--New Taipei City to Taipei City........ 1.00
One-way travel--Taichung to Taipei City............... 6.50
One-way travel--Kaohsiung to Taipei City.............. 21.00
-----------------
Average--Home city to Taipei City................. 9.50
Lodging cost--Taipei City............................. .79
Meals................................................. 12.26
One-way travel--Taipei City to Saipan................. 308.00
-----------------
Total one-way travel.............................. 339.55
------------------------------------------------------------------------
Malaysia
------------------------------------------------------------------------
One-way travel--within Kuala Lumpur................... 0.00
One-way travel--Ipoh to Kuala Lumpur.................. 5.00
-----------------
One-way travel--Iskander Puteri to Kuala Lumpur....... 21.50
-----------------
Average--Home city to Kuala Lumpur................ 8.83
Lodging cost--Kuala Lumpur............................ 5.08
Meals................................................. 12.26
One-way travel--Kuala Lumpur to Saipan................ 445.00
-----------------
Total one-way travel.............................. 471.17
------------------------------------------------------------------------
Vietnam
------------------------------------------------------------------------
One-way travel--within Hanoi.......................... 0.00
One-way travel--Ho Chi Minh City to Hanoi............. 30.00
One-way travel--Da Nang to Hanoi...................... 14.00
-----------------
Average--Home city to Hanoi....................... 14.67
Lodging cost--Hanoi................................... 5.08
Meals................................................. 12.26
One-way travel--Hanoi to Saipan....................... 419.00
-----------------
Total one-way travel.............................. 448.63
------------------------------------------------------------------------
Thailand
------------------------------------------------------------------------
One-way travel--within Bangkok........................ 0.00
One-way travel--Pattaya to Bangkok.................... 5.00
One-way travel--Nonthaburi to Bangkok................. 1.00
-----------------
Average--Home city to Bangkok..................... 2.00
Lodging cost--Bangkok................................. 3.68
Meals................................................. 12.26
One-way travel--Bangkok to Saipan..................... 447.00
-----------------
Total one-way travel.............................. 464.94
------------------------------------------------------------------------
India
------------------------------------------------------------------------
One-way travel--within New Delhi...................... 0.00
One-way travel--Mumbai to New Delhi................... 16.00
[[Page 12426]]
One-way travel--Bengaluru to New Delhi................ 30.00
-----------------
Average--Home city to New Delhi................... 15.33
Lodging cost--New Delhi............................... 3.27
Meals................................................. 12.26
One-way travel--New Delhi to Saipan................... 592.00
-----------------
Total one-way travel.............................. 622.86
------------------------------------------------------------------------
All
------------------------------------------------------------------------
One-way travel--Weighted average...................... 446.27
Round-trip travel--Weighted average................... 892.54
------------------------------------------------------------------------
To calculate the total transfers associated with workers traveling
to the CNMI, the Department first multiplied the projected number of
CW-1 workers in each year by the estimated percentage of CW-1 workers
not currently living in CNMI (37 percent) to obtain an estimate for the
number of workers that will require transportation, lodging, and
subsistence. The Department then multiplied this estimate by the
country-of-origin weighted average total round-trip travel cost
($892.54). For example, the projected number of CW-1 workers in FY 2019
is 13,000, so the estimated FY 2019 transfer is $4,293,109 (= 13,000
workers x 37 percent x $892.54). The annualized transfer over the
11.25-year period is estimated at $3,195,353 at a discount rate of 3
percent and $3,300,461 at a discount rate of 7 percent. The total
transfer over the 11.25-year period is estimated at $30,131,920 at a
discount rate of 3 percent and $25,124,791 at a discount rate of 7
percent.
(2) Wage Impact Analysis
The IFR, at Sec. 655.410(b)(1), provides that if the mean hourly
wage for an occupational classification in the CNMI is reported by the
Governor, annually, and meets the Department's statistical requirements
set forth in Sec. 655.410(e), the wage reported by the Governor must
be the prevailing wage for the occupational classification. When the
Department has not approved a survey for the occupation--either because
the Governor has not conducted a survey or because the Governor's
survey fails to meet the statistical standards for the occupation--the
prevailing wage must be the mean wage estimate for Guam for the
appropriate occupation, as reported by BLS in the OES. If Guam OES wage
data are unavailable for an occupation, the prevailing wage must be the
mean wage paid to workers in the SOC in the United States from the BLS
OES Survey, adjusted based on the ratio of the mean wage paid to
workers in all SOCs in Guam compared to the mean wage paid to workers
in all SOCs in the United States from the BLS OES survey. For this
analysis, the Department used the May 2017 ratio of 0.71, which is the
ratio of the Guam mean wage rate of $17.30 \70\ to the national mean
wage rate of $24.34.\71\ First, the Department matched each CW-1
occupation from the USCIS CW-1 beneficiary data to the most appropriate
SOC code. Then, the Department established a baseline wage for each
occupation using the hourly wage for the appropriate SOC code in the
2016 CNMI Prevailing Wage and Workforce Assessment Study (inflated to
2018 dollars). In contrast to the statistical requirements for the
prevailing wage--namely, 3 or more employers surveyed with a total of
30 or more employees--the baseline wage for this analysis was
established using a statistical standard of 3 or more employers
surveyed with a total of just 6 or more employees. If the occupation
met the statistical standard but the survey wage was lower than $7.25
per hour, the Department assigned $7.25 per hour as the baseline
because the CNMI minimum wage increased to $7.25 after the reference
period for the 2016 CNMI Prevailing Wage and Workforce Assessment Study
(November 1-16, 2016). Similarly, if the survey wage failed to meet the
statistical standard, the Department assigned $7.25 per hour. For each
occupation, the Department calculated the hourly wage difference by
subtracting the baseline wage estimate from the chosen prevailing wage.
Exhibit 6 provides four examples to illustrate how the baseline and
prevailing wages were chosen for each occupation.
---------------------------------------------------------------------------
\70\ U.S. Department of Labor, Bureau of Labor Statistics,
Occupational Employment Statistics program, ``State Occupational
Employment and Wage Estimates, Guam'' (May 2017), https://www.bls.gov/oes/current/oes_gu.htm.
\71\ U.S. Department of Labor, Bureau of Labor Statistics,
Occupational Employment Statistics program, ``National Occupational
Employment and Wage Estimates, United States'' (May 2017), https://www.bls.gov/oes/current/oes_nat.htm.
Exhibit 6--CNMI Prevailing Hourly Wage Under the IFR
[Example cases]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Baseline wage CNMI survey National OES Wage
CW-1 occupation title SOC code \a\ wage Guam OES wage wage x 0.71 Assigned wage difference
--------------------------------------------------------------------------------------------------------------------------------------------------------
Accountant.............................. 132011 $12.86 $12.86 $22.23 $26.60 $12.86 $0.00
Civil Engineer.......................... 172051 23.52 N/A 29.06 31.33 29.06 5.54
Architect/Surveyor...................... 173031 8.06 N/A N/A 15.82 15.82 7.76
Fisher/Hunter/Trapper................... 453011 7.25 N/A N/A 10.65 10.65 3.40
--------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ The baseline wage is the wage in the 2016 CNMI Prevailing Wage and Workforce Assessment Study (inflated to 2018 dollars) if the number of employers
surveyed is three or more and the total number of employees is six or more. Otherwise, the baseline is $7.25 per hour.
[[Page 12427]]
For accountants, the 2016 CNMI Prevailing Wage and Workforce
Assessment Study provided an hourly wage of $12.86 (inflated to 2018
dollars) based on survey responses from 165 employers with a total of
332 employees, meeting the Department's baseline wage criteria of 3
employers and 6 employees. The survey sample size also met the
Department's prevailing wage criteria of 3 employers and 30 employees,
so $12.86 per hour was assigned. This results in zero wage difference
between the baseline and the chosen prevailing wage for accountants in
the CNMI.
For civil engineers, the 2016 CNMI Prevailing Wage and Workforce
Assessment Study provided an hourly wage of $23.52 (inflated to 2018
dollars) based on survey responses from 12 employers with a total of 26
employees, meeting the Department's baseline criteria. However, this
survey sample size falls short of the Department's prevailing wage
criteria of 3 employers with a total of 30 employees. Therefore, the
2016 CNMI Prevailing Wage and Workforce Assessment Study hourly wage
for civil engineers was not chosen as the prevailing wage. Instead, the
May 2017 OES wage for Guam of $29.06 per hour was assigned as the
prevailing wage, resulting in an hourly wage difference of $5.54 for
civil engineers.
The CW-1 occupation labeled as architect/surveyor was assigned the
SOC code for Surveying and Mapping Technicians. The 2016 CNMI
Prevailing Wage and Workforce Assessment Study provided an hourly wage
of $8.06 (inflated to 2018 dollars) for Surveying and Mapping
Technicians. The survey wage was based on responses from three
employers with a total of eight employees, making it sufficient for the
baseline estimate but not for the prevailing wage. The May 2017 OES
hourly wage for Guam was also unavailable. Therefore, the scaled down
May 2017 national OES wage of $15.82 per hour was assigned as the
prevailing wage, resulting in a wage difference of $7.76.
Lastly, the CW-1 occupation labeled as fishers, hunters, and
trappers was assigned the SOC code for Fishers and Related Fishing
Workers. The 2016 CNMI Prevailing Wage and Workforce Assessment Study
provided an hourly wage of $6.60 for this SOC code, so the Department
assigned $7.25 per hour as the baseline. The hourly wage from the 2016
CNMI Prevailing Wage and Workforce Assessment Study was based on
responses from 8 employers with a total of 19 employees, so the survey
sample size was not large enough to use as the prevailing wage. The May
2017 OES hourly wage for Guam was also unavailable. Therefore, the
scaled down May 2017 national OES wage of $10.65 was assigned as the
prevailing wage, resulting in a wage difference of $3.40. This process
was repeated for all CW-1 occupation titles provided by USCIS.
Next, the Department used FY 2018 USCIS CW-1 beneficiary approvals
data to calculate the percentage of the CW-1 workers in each occupation
relative to the total number of CW-1 workers. The Department then
multiplied the percentage for each occupation by the statutory limit of
workers to estimate the total number of CW-1 workers in each occupation
for each year of the analysis. The Department then calculated the
number of U.S. workers in corresponding employment by multiplying the
number of CW-1 beneficiaries in each occupation in FY 2018 by a ratio
of citizen to noncitizen workers derived from CNMI Department of
Commerce data on the number of citizen and noncitizen workers in highly
aggregated occupational groups.\72\ Exhibit 7 provides examples for the
same CW-1 occupations as in Exhibit 6 to illustrate how the number of
CW-1 workers and corresponding U.S. workers were estimated.
---------------------------------------------------------------------------
\72\ CNMI Department of Commerce, Statistical Yearbook 2017,
Table 5.24 ``Average Hourly Wages by Occupation and Citizenship,
CNMI: 2016'' at http://ver1.cnmicommerce.com/sy-2017-table-5-17-31-wage-survey/.
Exhibit 7--FY 2019 Corresponding U.S. Workers in CW-1 Occupations
[Example cases]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Ratio of
FY 2018 CW- Percentage U.S. Total
CW-1 occupation title SOC code 1 of FY 2018 Projected FY 2019 CNMI Department of workers to Corresponding affected
approvals approvals CW-1 workers Commerce category CW-1 U.S. workers workers
workers
........ (a) (b) (c) = 13,000 x ...................... (d) (e) = (a) x (c) +
(b) (d) (e)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Accountant......................... 132011 287 3.09 401 Business and Financial 1.35 387 788
Operations.
Civil Engineer..................... 172051 10 0.11 14 Architecture and 0.84 8 22
Engineering.
Architect/Surveyor................. 173031 6 0.06 8 Architecture and 0.84 5 13
Engineering.
Fisher/Hunter/Trapper.............. 453011 19 0.20 27 Farming, Fishing, and 0.77 15 42
Forestry.
--------------------------------------------------------------------------------------------------------------------------------------------------------
The Department estimated wage impacts for each occupation by
multiplying the sum of the estimated number of CW-1 workers and
corresponding U.S. workers in each occupation by the difference between
the chosen prevailing hourly wage and the baseline wage, multiplied by
2,080 hours per year. For example, in the case of civil engineers, the
Department estimated a wage increase of $5.54 per hour, as shown in
Exhibit 6. Exhibit 7 projects 14 CW-1 workers and 8 corresponding U.S.
workers in FY 2019. To calculate the wage impacts for CW-1 workers
resulting from the increase in the prevailing wage for civil engineers,
the Department multiplied the number of affected CW-1 workers (14) by
the number of hours worked in 1 year (2,080) and by the change in the
hourly wage ($5.54). The result is an estimated increase in wages of
$161,257 in FY 2019 (= 14 workers x 2,080 hours x $5.54).\73\ For U.S.
workers, the result is an estimated increase in wages of $96,223 in FY
2019 (= 8 workers x 2,080 hours x $5.54).
---------------------------------------------------------------------------
\73\ Calculations may not match due to rounding.
---------------------------------------------------------------------------
This calculation was performed for each CW-1 occupation in each
year, and the total impacts were estimated by summing across all
occupations in each year. The annualized wage transfer over the 11.25-
year period is estimated at $31,599,130 (= $18,192,270 to CW-1 workers
+ $13,406,860 to U.S. workers) at a discount rate of 3 percent and
$32,221,562 (= $18,816,920 to CW-1 workers + $13,404,642 to U.S.
workers) at a discount rate of 7 percent. The total wage transfer over
the 11.25-year period is estimated at $297,977,189 (= $171,551,603 to
CW-1 workers + $126,425,586 to U.S. workers) at a discount rate of 3
percent and $245,286,945 (= $143,243,981 to CW-1 workers + $102,042,965
to U.S. workers) at a discount rate of 7 percent.
[[Page 12428]]
The wage impact estimates of this IFR are driven, in large part, by
the statutory requirement that employers offer a wage that equals or
exceeds the highest of the prevailing wage, or the Federal minimum
wage, or the Commonwealth minimum wage. In the absence of a valid wage
based on the 2016 CNMI Prevailing Wage and Workforce Assessment Study
conducted by the CNMI Governor, the Department's estimates
predominantly use the mean wage of workers similarly employed in Guam
from the BLS OES survey, as required by the statute, which are
significantly higher than what employers in the CNMI are currently
paying workers in the occupational classification. Additionally,
beginning September 30, 2018, the minimum wage in the Commonwealth
reached the Federal minimum wage of $7.25 per hour, representing a
$0.20-cent increase over the Commonwealth's prior minimum wage of $7.05
per hour. Thus, where the wage for any occupation based on the 2016
CNMI Prevailing Wage and Workforce Assessment Study conducted by the
CNMI Governor fell below $7.25 per hour, the Department's estimates
assume these employers would increase the rate of pay for workers to
match current minimum wage requirements in the Commonwealth.
5. Summary of Costs and Transfer Payments
Exhibit 8 presents a summary of the costs and transfer payments
associated with this IFR.\74\
---------------------------------------------------------------------------
\74\ In addition to the costs and transfers estimated by the
Department, the IFR is expected to cause deadweight loss (DWL). DWL
occurs when a market operates at less than optimal equilibrium
output, which happens anytime the conditions for a perfectly
competitive market are not met. Causes of DWL include taxes,
subsidies, externalities, labor market interventions, price
ceilings, and price floors. This IFR establishes a wage floor, which
will increase compensation rates above the equilibrium level for
some occupations. The higher cost of labor may lead to a decrease in
the total number of labor hours that are purchased on the market.
DWL is a function of the difference between the compensation
employers were willing to pay for the hours lost and the
compensation employees were willing to accept for those hours. The
extent of the DWL will largely depend on the elasticities of labor
demand and labor supply in the CNMI.
Exhibit 8--Estimated Costs and Transfer Payments
[2018 dollars]
----------------------------------------------------------------------------------------------------------------
Transfer payments
-----------------------------------------------
Fiscal year Costs Transfer Transfer
Total transfer payments to CW- payments to
payments 1 workers U.S. workers
----------------------------------------------------------------------------------------------------------------
2019............................................ $4,359,067 $42,286,653 $28,877,022 $13,409,631
2020............................................ 3,930,868 41,175,998 27,766,367 13,409,631
2021............................................ 3,775,905 40,065,343 26,655,712 13,409,631
2022............................................ 3,620,948 38,954,589 25,545,058 13,409,631
2023............................................ 3,465,984 37,844,034 24,434,403 13,409,631
2024............................................ 3,156,064 35,622,725 22,213,094 13,409,631
2025............................................ 2,846,144 33,401,415 19,991,784 13,409,631
2026............................................ 2,535,763 31,180,106 17,770,475 13,409,631
2027............................................ 2,225,842 28,958,796 15,549,165 13,409,631
2028............................................ 1,915,922 26,737,487 13,327,856 13,409,631
2029............................................ 1,605,547 24,516,178 11,106,547 13,409,631
2030,Q1......................................... 365,405 4,155,414 903,007 3,352,408
Annualized, 3% discount rate, 11.25 years....... 3,086,620 34,794,484 21,387,623 13,406,860
Annualized, 7% discount rate, 11.25 years....... 3,190,028 35,522,023 22,117,381 13,404,642
Total, 3% discount rate, 11.25 years............ 29,106,568 328,109,108 201,683,522 126,425,586
Total, 7% discount rate, 11.25 years............ 24,284,121 270,411,736 168,638,772 102,042,965
----------------------------------------------------------------------------------------------------------------
6. Regulatory Alternatives
The Department considered two regulatory alternatives to the
provisions in the IFR. The two alternatives differ from the IFR in one
respect: The third option used to set the prevailing wage. Under the
IFR, if wage data are not available from the Governor's survey or the
OES survey for Guam, the Department will base the prevailing wage on an
adjusted national OES wage. Under the first regulatory alternative, the
third option would be the national OES wage without adjustment. To
illustrate how prevailing wages would be determined under this
regulatory alternative, Exhibit 9 presents the PWD for four
occupations.
Exhibit 9--CNMI Prevailing Hourly Wage Under Regulatory Alternative 1
[Example cases]
--------------------------------------------------------------------------------------------------------------------------------------------------------
CNMI survey National OES Wage
CW-1 occupation title SOC code Baseline wage wage Guam OES wage wage Assigned wage difference
--------------------------------------------------------------------------------------------------------------------------------------------------------
Accountant.............................. 132011 $12.86 $12.86 $22.23 $37.46 $12.86 $0.00
Civil Engineer.......................... 172051 23.52 N/A 29.06 44.13 29.06 5.54
Architect/Surveyor...................... 173031 8.06 N/A N/A 22.28 22.28 14.22
Fisher/Hunter/Trapper................... 453011 7.25 N/A N/A 15.00 15.00 7.75
--------------------------------------------------------------------------------------------------------------------------------------------------------
The PWDs for accountants and civil engineers under this regulatory
alternative are identical to those of the IFR methodology. In contrast,
the PWDs for architects/surveyors and fishers/hunters/trappers are
higher due to the fact that they are not scaled down to reflect the
ratio of the mean wage in
[[Page 12429]]
Guam compared to the mean national wage.
The total impact of this regulatory alternative was calculated in
the same manner as the calculations for the IFR. The annualized
transfer over the 11.25-year period is estimated at $37,945,227 (=
$21,376,630 to CW-1 workers + $16,568,597 to U.S. workers) at a
discount rate of 3 percent and $38,676,475 (= $22,110,619 to CW-1
workers + $16,565,856 to U.S. workers) at a discount rate of 7 percent.
The total transfer over the 11.25-year period is estimated at
$357,820,363 (= $201,579,856 to CW-1 workers + $156,240,507 to U.S.
workers) at a discount rate of 3 percent and $294,425,028 (=
$168,317,291 to CW-1 workers + $126,107,737 to U.S. workers) at a
discount rate of 7 percent. As explained earlier in the preamble, the
Department did not select this regulatory option because the Department
concluded it would be inappropriate to require an employer to pay a
prevailing wage that is based only on the national wage for the SOC
from the OES survey, without adjustment.
Under the second regulatory alternative considered by the
Department, the third option used to set the prevailing wage would be
the Federal minimum wage of $7.25. To illustrate how prevailing wages
would be determined under this regulatory alternative, Exhibit 10
presents the PWD for four occupations.
Exhibit 10--CNMI Prevailing Hourly Wage Under Regulatory Alternative 2
[Example cases]
--------------------------------------------------------------------------------------------------------------------------------------------------------
CNMI survey Federal Wage
CW-1 occupation title SOC code Baseline wage wage Guam OES wage minimum wage Assigned wage difference
--------------------------------------------------------------------------------------------------------------------------------------------------------
Accountant.............................. 132011 $12.86 $12.86 $22.23 $7.25 $12.86 $0.00
Civil Engineer.......................... 172051 23.52 N/A 29.06 7.25 29.06 5.54
Architect/Surveyor...................... 173031 8.06 N/A N/A 7.25 7.25 -0.81
Fisher/Hunter/Trapper................... 453011 7.25 N/A N/A 7.25 7.25 0.00
--------------------------------------------------------------------------------------------------------------------------------------------------------
The PWDs for accountants and civil engineers under this regulatory
alternative are identical to those of the IFR methodology. In contrast,
the PWDs for architects/surveyors and fishers/hunters/trappers are
lower due to the fact that they are based on the Federal minimum wage
rather than an adjusted national wage.
The total impact of this regulatory alternative was calculated in
the same manner as the calculations for the IFR. The annualized
transfer over the 11.25-year period is estimated at $21,206,225 (=
$13,260,759 to CW-1 workers + $7,945,466 to U.S. workers) at a discount
rate of 3 percent and $21,660,232 (= $13,716,081 to CW-1 workers +
$7,944,151 to U.S. workers) at a discount rate of 7 percent. The total
transfer over the 11.25-year period is estimated at $199,972,952 (=
$125,047,868 to CW-1 workers + $74,925,085 to U.S. workers) at a
discount rate of 3 percent and $164,888,722 (= $104,413,798 to CW-1
workers + $60,474,924 to U.S. workers) at a discount rate of 7 percent.
The Department did not select this regulatory option because the
Department concluded it would not prevent the employment of CW-1
workers from causing an adverse effect on the wages and working
conditions of similarly employed U.S. workers.
B. Regulatory Flexibility Act
The Regulatory Flexibility Act, 5 U.S.C. 601 et seq. (RFA) imposes
certain requirements on Federal agency rules that are subject to the
notice-and-comment requirements of the APA, 5 U.S.C. 553(b),\75\ and
that are likely to have a significant economic impact on a substantial
number of small entities. This IFR is exempt from the notice-and-
comment requirements of the APA because, as described earlier, the
Workforce Act directs the Secretary to publish an IFR
``[n]otwithstanding the requirements under sec. 553(b) of [the
Administrative Procedure Act].'' Public Law 115-218, sec. 3(b).
Therefore, the requirements of the RFA applicable to notices of
proposed rulemaking, 5 U.S.C. 603 (providing for an initial regulatory
flexibility analysis), do not apply to this IFR. Accordingly, the
Department is not required to either certify that the IFR would not
have a significant economic impact on a substantial number of small
entities or conduct a regulatory flexibility analysis.
---------------------------------------------------------------------------
\75\ The Regulatory Flexibility Act, as amended, governs ``any
rule for which [a Federal] agency publishes a general notice of
proposed rulemaking pursuant to sec. 553(b) of [the Administrative
Procedure Act] or any other law.'' 5 U.S.C. 601(2) (defining
``rule,'' for purposes of the RFA).
---------------------------------------------------------------------------
C. Paperwork Reduction Act
As part of its effort to streamline information collection, clarify
statutory and regulatory requirements, and provide greater transparency
and oversight of PWDs and TLCs in the context of the CW-1 program, the
Department engages with the public and Federal agencies to provide them
with an opportunity to comment on collections of information tools in
accordance with the PRA (44 U.S.C. 3506(c)(2)(A)). In January 2019, the
Department submitted an Information Collection Requests (ICR) in
connection with this IFR to the Office of Management and Budget (OMB)
for which it obtained approval using emergency clearance procedures
outlined at 5 CFR 1320.13, to create new information collection tools
on which it will rely to administer the issuance of PWDs and TLCs in
connection with the CW-1 program. OMB assigned a new OMB Control Number
for this information collection, 1205-053X.
This process of engaging the public and other Federal agencies
helps ensure that requested data can be provided in the desired format,
reporting burden (time and financial resources) is minimized,
collection instruments are clearly understood, and the impact of
collection requirements on respondents can be properly assessed. The
PRA provides that a Federal agency generally cannot conduct or sponsor
a collection of information, and the public is generally not required
to respond to an information collection, unless it is approved by OMB
under the PRA and displays a currently valid OMB Control Number. See 44
U.S.C. 3501 et seq. In addition, notwithstanding any other provisions
of law, no person must generally be subject to penalty for failing to
comply with a collection of information that does not display a valid
OMB Control Number. See 5 CFR 1320.5(a) and 1320.6.
In accordance with the PRA, the Department, is affording the public
with notice and an opportunity to comment on these new information
collection tools that are related to the CW-1 Program, and that are
necessary to
[[Page 12430]]
implement the requirements of this IFR. The information collection
activities covered by this new OMB Control Number 1205-053X is required
by 48 U.S.C. 1806 of the Workforce Act, and 20 CFR 655, subpart E. The
Workforce Act provides that a petition to import a nonimmigrant worker
under the CW-1 visa classification may not be approved by DHS unless
the employer has received a TLC from the Department confirming that:
(1) There are not sufficient U.S. workers in the CNMI who are able,
willing, qualified, and available at the time and place needed to
perform the services or labor involved in the petition; and (2) the
employment of a nonimmigrant worker who is the subject of a petition
will not adversely affect the wages and working conditions of similarly
employed U.S. workers.
As mentioned above, the new OMB Control No. 1205-053X, includes the
collection of information to be conducted through information
collection tools, that include forms and record keeping requirements,
on which the Department relies for determining prevailing wages and
issuing TLCs in connection with the CW-1 program. Additionally, the new
information collection tools permit employers to assure compliance with
respect to the minimum terms and conditions associated with the PWD and
TLC processes, which include the rights and obligations of CW-1 workers
and workers in corresponding employment, in addition to information
regarding record keeping requirements associated with the CW-1 program.
Specifically, ETA has created new Form ETA-9141C, Application for
Prevailing Wage Determination and new Form ETA-9142C, CW-1 Application
for Temporary Employment Certification.
The information contained in the new Form ETA-9141C is the basis
for the Secretary's determination of the appropriate prevailing wage
that employers in the CNMI must pay in the hiring of a foreign worker,
to make sure there is no adverse effect on U.S. workers' wages. Prior
to submitting a requests to OFLC for a TLCs and, as needed, labor
condition applications, employers must obtain a prevailing wage for the
job opportunity based on the place of employment. In order to carry out
the provisions of this IFR, the Department created under this ICR the
collection of information on the Form ETA-9141C, to collect information
from employers under the CW-1 program to establish a prevailing wage in
the occupational classification and places of employment within the
Commonwealth. This request must be electronically submitted unless the
regulatory exemptions, specified in the rule, apply, in which case the
employer will be allowed to submit a PW via mail.
In addition, the Department has created the Form ETA-9142C, CW-1
Application for Temporary Employment Certification, and corresponding
appendices which serve as the basis for the Secretary's certification
that qualified U.S. workers are not available to perform the services
or labor needed by the employer, and that the wages and working
conditions of similarly employed U.S. workers will not be adversely
affected by the employment of CW-1 workers. This certification is
required before a petition for a CW-1 worker can be filed with and
approved by DHS. This request must be filed electronically through the
newly created OFLC FLAG system, unless the employer establishes
inadequate access to the internet or requests that a special
accommodation be made; under these exemptions, employers will be
allowed to file the request by mail, and when necessary, with the
assistance of the Department.
The Form ETA-9142C collects basic information related to the
employer in the CNMI and the job opportunity in which it seeks to
employ CW-1 workers, including, but not limited to, the job title and
occupational classification, number of workers, period of employment,
job duties and minimum requirements, and other material terms and
conditions of the job offer. To ensure no adverse effect on the wages
of similarly employed U.S. workers and that all work expected to be
performed by CW-1 workers will be located within the Commonwealth, an
employer must disclose on the Form ETA-9142C--and on Appendix B, if
appropriate \76\--all places of employment (i.e., worksites) and the
wage rates to be paid to CW-1 workers at those worksites. The latter
allows OFLC to compare the reported wage rates with the PWDs obtained
by the employer for each of those places of employment. Where it is not
practical to collect supporting documentation using one of the standard
OMB-approved appendices, the newly created FLAG System will permit an
employer to upload documentation in support of the application,
required by this subpart at the time of filing, in an acceptable
digitized format (e.g., Adobe PDF, Microsoft Word, .TXT) to minimize
employer reporting burden.
The Form ETA-9142C must also be filed electronically through the
newly created OFLC FLAG system, unless the employer establishes
inadequate access to the internet or requests that a special
accommodation be made; under these exemptions, employers will be
allowed to file the request by mail, and when necessary, with the
assistance of the Department. In preparing the Form ETA-9142C in the
FLAG System, the employer will be provided with a series of electronic
data validation checks and prompts to ensure each required field is
completed and values entered on the form are valid and consistent with
regulatory requirements. OFLC's website and the FLAG System's e-filing
capability will include detailed instructions designed to help
employers understand what each form collection item means, what kind of
entries are required, and what other documentation or information is
required to be attached in order for a complete Application for
Temporary Employment Certification for the CW-1 Program to be submitted
for processing by the NPC.
In addition to its requests for comments in connection with this
IFR, the Department is seeking comments on the recordkeeping costs
associated with this IFR and its implementation of Form ETA-9142C and
its three appendices and accompanying general instructions. The
Appendix A provides a standard format for an employer filing as a job
contractor to disclose the name and contact information of its
employer-client, as required by this IFR. The Appendix B requires an
employer to use a standard format to disclose multiple places of
employment and, if applicable, multiple wage offers for the job
opportunity within the Commonwealth. And finally, employers and, if
applicable, their authorized agents or attorneys, use Appendix C to
attest to their compliance with all of the terms, conditions, and
obligations of the CW-1 program.
To promote greater efficiency in issuing TLC decisions and minimize
delays associated with employers filing CW-1 petitions with DHS, the
Form ETA-9142C, Final Determination: CW-1 Temporary Labor Certification
Approval, will be issued electronically to employers granted TLC by
ETA. In circumstances where the employer or, if applicable, its
authorized attorney or agent, is not able to receive the TLC documents
electronically, ETA will send the certification documents printed on
standard paper in a manner that ensures expedited delivery.
The information collection requirements associated with this rule
are summarized as follows:
Agency: DOL-ETA.
Type of Information Collection: New.
Title of the Collection: CW-1 Temporary Labor Certification.
[[Page 12431]]
Agency Form Number: Form ETA-9142C; Form ETA-9141C; recordkeeping
requirements.
Affected Public: Private Sector--businesses or other for-profits;
non-profits.
Total Estimated Number of Respondents: Approximately 2,314.
Form ETA-9142C:
Estimated Number of Respondents filing electronically:
Approximately 2,198
Estimated Number of Respondents filing by mail: Approximately 166
Form ETA-9141C:
Estimated Number of Respondents filing electronically:
Approximately 2,198
Estimated Number of Respondents filing by mail: Approximately 116
Record keeping:
Estimated Number of Respondents that must comply with record
keeping requirements: Approximately 2,314.
Total Estimated Number of Responses: Approximately 149,739
responses.
Average Time per Response: 46 minutes per Form ETA 9141 application
and 1 hour and 50 minutes per Form ETA 9142C application materials; 20
minutes to comply with recordkeeping requirements.
Total Estimated Annual Time Burden: 73,987 hours.
Total Estimated Other Costs Burden: $155,155.00.
D. Unfunded Mandates Reform Act of 1995
This IFR has been reviewed in accordance with the Unfunded Mandates
Reform Act of 1995 (UMRA). 2 U.S.C. 1501 et seq. For the purposes of
the UMRA, this IFR does not impose any federal mandate that may result
in increased expenditures by State, local, or Tribal governments, or
increased expenditures by the private sector, of more than $100 million
in any year.
E. Small Business Regulatory Enforcement Fairness Act of 1996
This IFR would not be a major rule as defined by section 804 of the
Small Business Regulatory Enforcement Act of 1996, Public Law 104-121,
804, 110 Stat. 847, 872 (1996), 5 U.S.C. 804(2). OIRA has found that
this rule is not likely to 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 foreign-based companies in domestic or export
markets.
F. Executive Order 13132, Federalism
This IFR does not have federalism implications because it would 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.
Accordingly, E.O. 13132, Federalism, requires no further agency action
or analysis.
G. Executive Order 13175, Indian Tribal Governments
This IFR does not have ``tribal implications'' because it would not
have substantial direct effects on one or more Indian tribes, on the
relationship between the Federal government and Indian tribes, or on
the distribution of power and responsibilities between the Federal
government and Indian tribes. Accordingly, E.O. 13175, Consultation and
Coordination with Indian Tribal Governments, requires no further agency
action or analysis.
List of Subjects in 20 CFR Part 655
Administrative practice and procedure, Foreign workers, Employment,
Employment and training, Enforcement, Forest and forest products,
Fraud, Health professions, Immigration, Labor, Passports and visas,
Penalties, Reporting and recordkeeping requirements, Unemployment,
Wages, Working conditions.
For the reasons stated in the preamble, the Department of Labor
amends 20 CFR part 655 as follows:
Title 20--Employees' Benefits
PART 655--TEMPORARY EMPLOYMENT OF FOREIGN WORKERS IN THE UNITED
STATES
0
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)(E)(iii), 1101(a)(15)(H)(i) and (ii), 8 U.S.C.
1103(a)(6), 1182(m), (n), and (t), 1184(c), (g), and (j), 1188, and
1288(c) and (d); 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. 303(a)(8), Pub. L. 102-232, 105
Stat. 1733, 1748 (8 U.S.C. 1101 note); sec. 323(c), Pub. L. 103-206,
107 Stat. 2428; sec. 412(e), Pub. L. 105-277, 112 Stat. 2681 (8
U.S.C. 1182 note); sec. 2(d), Pub. L. 106-95, 113 Stat. 1312, 1316
(8 U.S.C. 1182 note); 29 U.S.C. 49k; Pub. L. 107-296, 116 Stat.
2135, as amended; Pub. L. 109-423, 120 Stat. 2900; 8 CFR
214.2(h)(4)(i); 8 CFR 214.2(h)(6)(iii); and sec. 6, Pub. L. 115-218,
132 Stat. 1547 (48 U.S.C. 1806).
Subpart A issued under 8 CFR 214.2(h).
Subpart B issued under 8 U.S.C. 1101(a)(15)(H)(ii)(a), 1184(c),
and 1188; and 8 CFR 214.2(h).
Subpart E issued under 48 U.S.C. 1806.
Subparts F and G issued under 8 U.S.C. 1288(c) and (d); sec.
323(c), Pub. L. 103-206, 107 Stat. 2428; and 28 U.S.C. 2461 note,
Pub. L. 114-74 at section 701.
Subparts H and I issued under 8 U.S.C. 1101(a)(15)(H)(i)(b) and
(b)(1), 1182(n) and (t), and 1184(g) and (j); sec. 303(a)(8), Pub.
L. 102-232, 105 Stat. 1733, 1748 (8 U.S.C. 1101 note); sec. 412(e),
Pub. L. 105-277, 112 Stat. 2681; 8 CFR 214.2(h); and 28 U.S.C. 2461
note, Pub. L. 114-74 at section 701.
Subparts L and M issued under 8 U.S.C. 1101(a)(15)(H)(i)(c) and
1182(m); sec. 2(d), Pub. L. 106-95, 113 Stat. 1312, 1316 (8 U.S.C.
1182 note); Pub. L. 109-423, 120 Stat. 2900; and 8 CFR 214.2(h).
0
2. Add subpart E to read as follows:
Subpart E--Labor Certification Process for Temporary Employment in
the Commonwealth of the Northern Marianas Islands (CW-1 Workers)
Sec.
655.400 Scope and purpose of this subpart.
655.401 Authority of the agencies, offices, and divisions in the
Department of Labor.
655.402 Definition of terms.
655.403 Persons and entities authorized to file.
655.404 Requirements for agents.
655.405-655.409 [Reserved]
Prefiling Procedures
655.410 Offered wage rate and determination of prevailing wage.
655.411 Review of prevailing wage determinations.
655.412-655.419 [Reserved]
CW-1 Application for Temporary Employment Certification Filing
Procedures
655.420 Application filing requirements.
655.421 Job contractor filing requirements.
655.422 Emergency situations.
655.423 Assurances and obligations of CW-1 employers.
655.424-655.429 [Reserved]
Processing of an CW-1 Application for Temporary Employment
Certification
655.430 Review of applications.
655.431 Notice of Deficiency.
655.432 Submission of modified applications.
655.433 Notice of Acceptance.
655.434 Amendments to an application.
655.435-655.439 [Reserved]
Post Acceptance Requirements
655.440 Employer-conducted recruitment.
655.441 Job offer assurances and advertising contents.
655.442 Place advertisement with CNMI Department of Labor.
655.443 Contact with former U.S. workers.
655.444 Notice of posting requirement.
655.445 Additional employer-conducted recruitment.
655.446 Recruitment report.
655.447-655.449 [Reserved]
Labor Certification Determinations
655.450 Determinations.
[[Page 12432]]
655.451 Criteria for temporary labor certification.
655.452 Approved certification.
655.453 Denied certification.
655.454 Partial certification.
655.455 Validity of temporary labor certification.
655.456 Document retention requirements for CW-1 employers.
655.457-655.459 [Reserved]
Post Certification Activities
655.460 Extensions.
655.461 Administrative review.
655.462 Withdrawal of a CW-1 Application for Temporary Employment
Certification.
655.463 Public disclosure.
655.464-655.469 [Reserved]
Integrity Measures
655.470 Audits.
655.471 Assisted recruitment.
655.472 Revocation.
655.473 Debarment.
655.474-655.499 [Reserved]
Sec. 655.400 Scope and purpose of this subpart.
(a) Purpose. (1) A temporary labor certification (TLC) issued under
this subpart reflects a determination by the Secretary of Labor
(Secretary), pursuant to 48 U.S.C. 1806(d)(2)(A), that:
(i) There are not sufficient U.S. workers in the Commonwealth who
are able, willing, and qualified and who will be available at the time
and place needed to perform the services or labor for which an employer
desires to hire foreign workers; and
(ii) The employment of the CNMI-Only Transitional Worker visa
program (CW-1) nonimmigrant worker(s) will not adversely affect the
wages and working conditions of U.S. workers similarly employed.
(2) This subpart describes the process by which the Department of
Labor (Department or DOL) makes such a determination and certifies its
determination to the Department of Homeland Security (DHS).
(b) Scope. This subpart sets forth the procedures governing the
labor certification process for the employment of foreign workers in
the CW-1 nonimmigrant classification, as defined in 48 U.S.C. 1806(d).
It also establishes standards and obligations with respect to the terms
and conditions of the temporary labor certification (TLC) with which
CW-1 employers must comply, as well as the rights and obligations of
CW-1 workers and workers in corresponding employment. Additionally,
this subpart sets forth integrity measures for ensuring employers'
continued compliance with the terms and conditions of the TLC.
Sec. 655.401 Authority of the agencies, offices, and divisions in
the Department of Labor.
The Secretary has delegated authority to the Assistant Secretary
for the Employment and Training Administration (ETA), who in turn has
delegated that authority to the Office of Foreign Labor Certification
(OFLC), to issue certifications and carry out other statutory
responsibilities as required by 48 U.S.C. 1806. Determinations on a CW-
1 Application for Temporary Employment Certification are made by the
OFLC Administrator who, in turn, may delegate this responsibility to
designated staff members, e.g., a Certifying Officer (CO).
Sec. 655.402 Definition of terms.
For purposes of this subpart:
Administrative Law Judge (ALJ) means a person within the
Department's Office of Administrative Law Judges appointed under 5
U.S.C. 3105.
Agent means a person or a legal entity, such as an association or
other organization of employers, or an attorney for an association or
other organization of employers, that:
(1) Is authorized to act on behalf of the employer for Temporary
Labor Certification (TLC) purposes;
(2) Is not itself an employer, or a joint employer, as defined in
this subpart with respect to the specific application; and
(3) Is not under suspension, debarment, expulsion, disbarment, or
otherwise restricted from practice before any court, the Department,
the Executive Office for Immigration Review or DHS under 8 CFR 292.3 or
1003.101.
Applicant (or U.S. applicant) means a U.S. worker who is applying
for a job opportunity for which an employer has filed a CW-1
Application for Temporary Employment Certification.
Application for Prevailing Wage Determination means the Office of
Management and Budget (OMB)-approved Form ETA-9141C (or successor form)
and the appropriate appendices, submitted by an employer to secure a
prevailing wage determination (PWD) from the National Prevailing Wage
Center (NPWC).
CW-1 Application for Temporary Employment Certification means the
OMB-approved Form ETA-9142C (or successor form) and the appropriate
appendices, a valid wage determination, as required by Sec. 655.410,
and all supporting documentation submitted by an employer to secure a
TLC determination from the OFLC Administrator.
Attorney means any person who is a member in good standing of the
bar of the highest court of any State, possession, territory, or
commonwealth of the United States, or the District of Columbia. Such a
person is also permitted to act as an agent under this subpart. No
attorney who is under suspension, debarment, expulsion, or disbarment
from practice before any court, the Department, the Executive Office
for Immigration Review, or DHS under 8 CFR 1003.101 or 292.3, may
represent an employer under this subpart.
Board of Alien Labor Certification Appeals (BALCA or Board) means
the permanent Board established by part 656 of this chapter, chaired by
the Chief Administrative Law Judge (Chief ALJ), and consisting of ALJs
appointed pursuant to 5 U.S.C. 3105 and designated by the Chief ALJ to
be members of BALCA.
Certifying Officer or CO means the person who makes determination
on a CW-1 Application for Temporary Employment Certification filed
under the CW-1 program. The OFLC Administrator is the national CO.
Other COs may also be designated by the OFLC Administrator to make the
determinations required under this subpart, including making PWDs.
Chief Administrative Law Judge or Chief ALJ means the chief
official of the Department's Office of Administrative Law Judges or the
Chief ALJ's designee.
CNMI Department of Labor means the executive Department of the
Commonwealth Government that administers employment and job training
activities for employers and U.S. workers in the Commonwealth.
Commonwealth or CNMI means the Commonwealth of the Northern Mariana
Islands.
Corresponding employment means the employment of U.S. workers who
are not CW-1 workers by an employer who has an approved CW-1
Application for Temporary Employment Certification in any work included
in the approved job offer, or in any work performed by the CW-1
workers. To qualify as corresponding employment the work must be
performed during the validity period of the CW-1 Application for
Temporary Employment Certification and approved job offer, including
any approved extension thereof.
CW-1 Petition means the U.S. Citizenship and Immigration Services
(USCIS) Form I-129CW, Petition for a CNMI-Only Nonimmigrant
Transitional Worker, a successor form, other form, or electronic
equivalent, any supplemental information requested by USCIS, and
[[Page 12433]]
additional evidence as may be prescribed or requested by USCIS.
CW-1 worker means any foreign worker who is lawfully present in the
Commonwealth and authorized by DHS to perform temporary labor or
services under 48 U.S.C. 1806(d).
Date of need means the first date the employer requires services of
the CW-1 workers as indicated on the CW-1 Application for Temporary
Employment Certification.
Department of Homeland Security or DHS means the Federal Department
having jurisdiction over certain immigration-related functions, acting
through its component agencies, including USCIS.
Employee means a person who is engaged to perform work for an
employer, as defined under the general common law of agency. Some of
the factors relevant to the determination of employee status include:
The hiring party's right to control the manner and means by which the
work is accomplished; the skill required to perform the work; the
source of the instrumentalities and tools for accomplishing the work;
the location of the work; the hiring party's discretion over when and
how long to work; and whether the work is part of the regular business
of the hiring party. Other applicable factors may be considered and no
one factor is dispositive. The terms employee and worker are used
interchangeably in this subpart.
Employer means a person (including any individual, partnership,
association, corporation, cooperative, firm, joint stock company,
trust, or other organization with legal rights and duties) that:
(1) Has a place of business (physical location) in the Commonwealth
and a means by which it may be contacted for employment;
(2) Has an employer relationship (such as the ability to hire, pay,
fire, supervise or otherwise control the work of employees) with
respect to a CW-1 worker or a worker in corresponding employment, as
defined under the common law of agency; and
(3) Possesses, for purposes of filing a CW-1 Application for
Temporary Employment Certification, a valid Federal Employer
Identification Number (FEIN).
Employer-client means an employer that has entered into an
agreement with a job contractor and that is not an affiliate, branch,
or subsidiary of the job contractor, under which the job contractor
provides services or labor to the employer-client on a temporary basis
and will not exercise substantial, direct day-to-day supervision and
control in the performance of the services or labor to be performed
other than hiring, paying, and firing the workers.
Employment and Training Administration or ETA means the agency
within the Department that includes OFLC and has been delegated
authority by the Secretary to fulfill the Secretary's mandate under for
the administration and adjudication of a CW-1 Application for Temporary
Employment Certification and related functions.
Federal holiday means a legal public holiday as defined at 5 U.S.C.
6103.
Full-time means 35 or more hours of work per week.
Governor means the Governor of the Commonwealth of the Northern
Mariana Islands.
Job contractor means a person, association, firm, or a corporation
that meets the definition of an employer and that contracts services or
labor on a temporary basis to one or more employers that are not an
affiliate, branch, or subsidiary of the job contractor and where the
job contractor will not exercise substantial, direct day-to-day
supervision and control in the performance of the services or labor to
be performed other than hiring, paying, and releasing the workers.
Job offer means the offer made by an employer or potential employer
of CW-1 workers to both U.S. and CW-1 workers describing all the
material terms and conditions of employment, including those relating
to wages, working conditions, and other benefits.
Job opportunity means full-time employment at a place in the
Commonwealth to which U.S. workers can be referred.
Joint employment means that where two or more employers each have
sufficient definitional indicia of being a joint employer of a worker
under the common law of agency, they are, at all times, joint employers
of that worker.
Layoff means any involuntary separation of one or more U.S.
employees other than for cause.
Long-term worker means an alien who was admitted to the CNMI as a
CW-1 nonimmigrant during fiscal year (FY) 2015, and who was granted CW-
1 nonimmigrant status during each of FYs 2016 through 2018, as defined
by DHS.
National Prevailing Wage Center or NPWC means that office within
OFLC from which employers, agents, or attorneys who wish to file a CW-1
Application for Temporary Employment Certification receive a PWD.
NPWC Director means the OFLC official to whom the OFLC
Administrator has delegated authority to carry out certain NPWC
operations and functions.
National Processing Center (NPC) means the office within OFLC in
which the COs operate, and which are charged with the adjudication of
CW-1 Applications for Temporary Employment Certification.
NPC Director means the OFLC official to whom the OFLC Administrator
has delegated authority for purposes of certain NPC operations and
functions.
Occupational employment statistics (OES) survey means the program
under the jurisdiction of the Bureau of Labor Statistics (BLS) that
reports annual wage estimates, including those for Guam, based on
standard occupational classifications (SOCs).
Offered wage means the wage offered by an employer in the CW-1
Application for Temporary Employment Certification and job offer. The
offered wage must equal or exceed the highest of the prevailing wage,
or the Federal minimum wage, or the Commonwealth minimum wage.
Office of Foreign Labor Certification or OFLC means the
organizational component of the ETA that provides national leadership
and policy guidance and develops regulations to carry out the
Secretary's responsibilities, including determinations related to an
employer's request for an Application for Prevailing Wage Determination
or CW-1 Application for Temporary Employment Certification.
Place of employment means the worksite (or physical location) where
work under the CW-1 Application for Temporary Employment Certification
and job offer actually is performed by the CW-1 workers and workers in
corresponding employment.
Prevailing wage (PW) means the official wage issued by the NPWC on
the Form ETA 9141C, Application for Prevailing Wage Determination for
the CW-1 Program, or successor form. At least that amount must be paid
to all CW-1 workers and U.S. workers in corresponding employment.
Prevailing wage determination (PWD) means the prevailing wage
issued by the OFLC NPWC on the Form ETA-9141C, Application for
Prevailing Wage Determination for the CW-1 Program, or successor form.
The PWD is used in support of the CW-1 Application for Temporary
Employment Certification.
Secretary of Labor or Secretary means the chief official of the
U.S. DOL, or the Secretary's designee.
Secretary of Homeland Security means the chief official of DHS or
the Secretary of Homeland Security's designee.
[[Page 12434]]
Secretary of State means the chief official of the U.S. Department
of State or the Secretary of State's designee.
Strike means a concerted stoppage of work by employees as a result
of a labor dispute, or any concerted slowdown or other concerted
interruption of operation (including stoppage by reason of the
expiration of a collective bargaining agreement).
Successor in interest means an employer, agent, or attorney that is
controlling and carrying on the business of a previous employer.
(1) Where an employer, agent, or attorney has violated 48 U.S.C.
1806 or the regulations in this subpart and has ceased doing business
or cannot be located for purposes of enforcement, a successor in
interest to that employer, agent, or attorney may be held liable for
the duties and obligations of the violating employer in certain
circumstances. The following factors, as used under Title VII of the
Civil Rights Act and the Vietnam Era Veterans' Readjustment Assistance
Act, may be considered in determining whether an employer, agent, or
attorney is a successor in interest; no one factor is dispositive, and
all the circumstances will be considered as a whole:
(i) Substantial continuity of the same business operations;
(ii) Use of the same facilities;
(iii) Continuity of the work force;
(iv) Similarity of jobs and working conditions;
(v) Similarity of supervisory personnel;
(vi) Whether the former management or owner retains a direct or
indirect interest in the new enterprise;
(vii) Similarity in machinery, equipment, and production methods;
(viii) Similarity of products and services; and
(ix) The ability of the predecessor to provide relief.
(2) For purposes of debarment only, the primary consideration will
be the personal involvement of the firm's ownership, management,
supervisors, and others associated with the firm in the violation(s) at
issue.
Temporary labor certification or TLC means the certification made
by the OFLC Administrator, based on the CW-1 Application for Temporary
Employment Certification, job offer, and all supporting documentation,
with respect to an employer seeking to file with DHS a visa petition to
employ one or more foreign nationals as a CW-1 worker.
United States means the continental United States, Alaska, Hawaii,
the Commonwealth of Puerto Rico, Guam, the U.S. Virgin Islands, and the
Commonwealth.
United States worker (U.S. worker) means a worker who is:
(1) A citizen or national of the United States;
(2) An alien lawfully admitted for permanent residence; or
(3) A citizen of the Federated States of Micronesia, the Republic
of the Marshall Islands, or the Republic of Palau, who is eligible for
nonimmigrant admission and is employment-authorized under the Compacts
of Free Association between the United States and those nations.
U.S. Citizenship and Immigration Services or USCIS means the
Federal agency within DHS that makes the determination whether to grant
petitions filed by employers seeking CW-1 workers to perform temporary
work in the Commonwealth.
Wages mean all forms of cash remuneration to a worker by an
employer in payment for labor or services.
Work contract means the document containing all the material terms
and conditions of employment relating to wages, hours, working
conditions, places of employment, and other benefits, including all
assurances and obligations required to be included under this subpart.
The contract between the employer and the worker may be in the form of
a separate written document containing the advertised terms and
conditions of the job offer. In the absence of a separate, written work
contract incorporating the required terms and conditions of employment,
agreed to by both the employer and the worker, the required terms of
the certified CW-1 Application for Temporary Employment Certification
will be the work contract.
Sec. 655.403 Persons and entities authorized to file.
(a) Persons authorized to file. In addition to the employer, a
request for a PWD or TLC under this subpart may be filed by an attorney
or agent, as defined in Sec. 655.402.
(b) Employer's signature required. Regardless of whether the
employer is represented by an attorney or agent, the employer is
required to sign the CW-1 Application for Temporary Employment
Certification and all documentation submitted to the Department.
Sec. 655.404 Requirements for agents.
An agent filing a CW-1 Application for Temporary Employment
Certification on behalf of an employer must provide a copy of the agent
agreement or other document demonstrating the agent's authority to
represent the employer to the NPC at the time of filing the
application.
Sec. Sec. 655.405-655.409 [Reserved]
Prefiling Procedures
Sec. 655.410 Offered wage rate and determination of prevailing wage.
(a) Offered wage. (1) The employer must advertise the position to
all potential workers at a wage that is at least the highest of the
following:
(i) The prevailing wage for the job opportunity obtained from the
NPWC;
(ii) The Federal minimum wage; or
(iii) The Commonwealth minimum wage.
(2) The employer must offer and pay at least the wage provided in
paragraph (a)(1) of this section to both its CW-1 workers and its
workers in corresponding employment. The issuance of a PWD under this
section does not permit an employer to pay a wage lower than the
highest wage required by any applicable Federal or Commonwealth law.
(b) Determinations--(1) Methods. The OFLC Administrator will
determine prevailing wages in the Commonwealth and occupational
classification as follows:
(i) If the mean hourly wage for the occupational classification in
the Commonwealth is reported by the Governor, annually, and meets the
requirements set forth in paragraph (e) of this section, as determined
by the OFLC Administrator, that wage must be the prevailing wage for
the occupational classification;
(ii) If the OFLC Administrator has not approved a survey, as
reported by the Governor, for the occupational classification under
paragraph (b)(1)(i) of this section, and the BLS OES survey reports a
mean wage paid to workers in the SOC in Guam, the prevailing wage must
be the mean wage paid to workers in the SOC in Guam from the BLS OES
survey; and
(iii) If the OFLC Administrator has not approved a survey, as
reported by the Governor, for the occupational classification under
paragraph (b)(1)(i) of this section and the BLS OES survey does not
report the mean wage paid to workers in the SOC in Guam under paragraph
(b)(1)(ii) of this section, the prevailing wage must be the mean wage
paid to workers in the SOC in the United States from the BLS OES
Survey, adjusted based on the ratio of the mean wage paid to workers in
all SOCs in Guam compared to the mean wage paid to workers in all SOCs
in the United States from the BLS OES survey.
[[Page 12435]]
(2) Multiple occupations. If the job duties on the Application for
Prevailing Wage Determination do not fall within a single occupational
classification, the NPC will determine the applicable prevailing wage
based on the highest prevailing wage for all applicable occupational
classifications.
(c) Request for PWD. (1) Filing requirement. An employer must
electronically request and receive a PWD from the NPWC then
electronically file the CW-1 Application for Temporary Employment
Certification with the NPC.
(2) Location and methods of filing--(i) Electronic filing. The
employer must file the Application for Prevailing Wage Determination
and all required supporting documentation with the NPWC using the
electronic method(s) designated by the OFLC Administrator. The NPWC
will return without review any application submitted using a method
other than the designated electronic method(s), unless the employer
submits with the application a statement of the need to file by mail.
(ii) Filing by mail. Employers that are unable to file
electronically, either due to lack of internet access or physical
disability precluding electronic filing, may file the application by
mail. The mailed application must include a statement indicating the
need to file by mail. The NPWC will return, without review, mailed
applications that do not contain such a statement. OFLC will publish
the address for mailed applications in the instructions to Form ETA-
99141C.
(d) NPWC action. The NPWC will provide the PWD, indicate the source
of the PWD, and return the Application for Prevailing Wage
Determination with its endorsement to the employer.
(e) Wage survey reported by the Governor. The OFLC Administrator
will issue a prevailing wage for the occupational classification in the
Commonwealth based on a wage survey reported by the Governor if all of
the following requirements are met:
(1) The survey was independently conducted and issued by the
Governor of the Commonwealth, including through any Commonwealth
agency, Commonwealth college, or Commonwealth university;
(2) The survey provides the arithmetic mean of the wages of workers
in the occupational classification in the Commonwealth;
(3) The surveyor either made a reasonable, good faith attempt to
contact all employers in the Commonwealth employing workers in the
occupation or conducted a randomized sampling of such employers;
(4) The survey includes the wages of at least 30 workers in the
Commonwealth;
(5) The survey includes the wages of workers in the Commonwealth
employed by at least three employers;
(6) The survey was conducted across industries that employ workers
in the occupational classification;
(7) The wage reported in the survey includes all types of pay;
(8) The survey is based on wages paid to workers in the
occupational classification not more than 12 months before the date the
survey is submitted to the OFLC Administrator for consideration; and
(9) The Governor submits the survey to the OFLC Administrator, with
specific information about the survey methodology, including such items
as sample size and source, sample selection procedures, and survey job
descriptions, to allow a determination of the adequacy of the data
provided and validity of the statistical methodology used in conducting
the survey.
(f) Review of wage survey reported by the Governor. (1) If the OFLC
Administrator finds the wage reported for any occupational
classification not to be acceptable, the OFLC Administrator must inform
the Governor in writing of the reasons the wage reported in the survey
was not accepted.
(2) The Governor, after receiving notification from the OFLC
Administrator that the wage reported in the survey it provided for
consideration is not acceptable, may submit corrected wage data or
conduct a new wage survey and submit revised wage data to the OFLC
Administrator for consideration under this section.
(g) Validity period. The NPWC will specify the validity period of
the prevailing wage, which in no event may be more than 365 days or
fewer than 90 days from the date that the determination is issued.
(h) Retention of documentation. The employer must retain the PWD
for 3 years from the date of issuance if not used in support of a TLC
application or if it is used in support of a TLC application that is
denied, and 3 years from the date on which the certification of the CW-
1 Application for Temporary Employment Certification expires, whichever
is later. The employer must submit the PWD to a CO if requested by a
Notice of Deficiency (NOD), described in Sec. 655.431, or audit, as
described in Sec. 655.470, or to any Federal Government Official
performing an investigation, inspection, audit, or law enforcement
function.
Sec. 655.411 Review of prevailing wage determinations.
(a) Request for review of PWDs. Any employer desiring review of a
PWD must make a written request for such review to the NPWC Director.
The written request must be received by the NPWC Director within 7
business days from the date the PWD was issued. The request for review
must clearly identify the PWD for which review is sought; set forth the
particular grounds for the request; and include any materials submitted
to the NPWC for purposes of securing the PWD.
(b) NPWC review. Upon the receipt of the written request for
review, the NPWC Director will review the employer's request and
accompanying documentation, including any supplementary material
submitted by the employer, and after review must issue a Final
Determination letter; that letter may:
(1) Affirm the PWD issued by the NPWC; or
(2) Modify the PWD.
(c) Request for review by BALCA. Any employer desiring review of
the NPWC Director's decision on a PWD must make a written request to
BALCA for review of the determination, with a copy simultaneously sent
to the NPWC Director who issued the final determination. The written
request must be received by BALCA within 10 business days from the date
the Final Determination letter was issued.
(1) Upon receipt of a request for BALCA review, the NPWC will
prepare an Appeal File and submit it to BALCA.
(2) The request for review, statements, briefs, and other
submissions of the parties must contain only legal arguments and may
refer to only the evidence that was within the record upon which the
decision on the PWD by the NPWC Director was based.
(3) BALCA will handle appeals in accordance with Sec. 655.461.
Sec. Sec. 655.412 -655.419 [Reserved]
CW-1 Application for Temporary Employment Certification Filing
Procedures
Sec. 655.420 Application filing requirements.
An employer seeking to hire CW-1 workers must electronically file a
CW-1 Application for Temporary Employment Certification with the NPC
designated by the OFLC Administrator. This section provides the
procedures an employer must follow when filing.
(a) What to file. An employer seeking a TLC must file a completed
CW-1 Application for Temporary Employment Certification (Form ETA-9142C
and the appropriate appendices and valid PWD),
[[Page 12436]]
and all supporting documentation and information required at the time
of filing under this subpart. Applications that are incomplete at the
time of submission will be returned to the employer without review.
(b) Timeliness. (1) Except as provided in paragraph (b)(2) of this
section, a completed CW-1 Application for Temporary Employment
Certification must be filed no more than 120 calendar days before the
employer's date of need.
(2) If the employer is seeking a TLC to extend the employment of a
CW-1 worker, a completed CW-1 Application for Temporary Employment
Certification must be filed no more than 180 calendar days before the
date on which the CW-1 status expires.
(c) Location and methods of filing--(1) Electronic filing. The
employer must file the CW-1 Application for Temporary Employment
Certification and all required supporting documentation with the NPC
using the electronic method(s) designated by the OFLC Administrator.
The NPC will return, without review, any application submitted using a
method other than the designated electronic method(s), unless the
employer submits with the application a statement of the need to file
by mail or indicates that it already submitted such a statement to NPWC
during the same fiscal year.
(2) Filing by mail. Employers that are unable to file
electronically, either due to lack of internet access or physical
disability precluding electronic filing, may file the application by
mail. The mailed application must include a statement indicating the
need to file by mail as indicated above. The NPC will return, without
review, mailed applications that do not contain such a statement. OFLC
will publish the address for mailed applications in the instructions to
Form ETA-99142C.
(d) Original signature and acceptance of electronic signatures. An
electronically filed CW-1 Application for Temporary Employment
Certification must contain an electronic (scanned) copy of the original
signature of the employer (and that of the employer's authorized
attorney or agent, if the employer is represented by an attorney or
agent) or, in the alternative, use a verifiable electronic signature
method, as directed by the OFLC Administrator. If submitted by mail,
the CW-1 Application for Temporary Employment Certification must bear
the original signature of the employer and, if applicable, the
employer's authorized attorney or agent.
(e) Requests for multiple positions. An employer may request
certification of more than one position on its CW-1 Application for
Temporary Employment Certification as long as all CW-1 workers will
perform the same services or labor under the same terms and conditions,
in the same occupation, during the same period of employment, and at a
location (or locations) covered by the application.
(f) Scope of application. (1) A CW-1 Application for Temporary
Employment Certification must be limited to places of employment within
the Commonwealth.
(2) In a single application filing, an association or other
organization of employers is not permitted to file a CW-1 Application
for Temporary Employment Certification on behalf of more than one
employer-member under the CW-1 program.
(g) Period of employment. (1) Except as provided in paragraph
(g)(2) of this section, the period of need identified in the CW-1
Application for Temporary Employment Certification must not exceed 1
year.
(2) If the employer is seeking TLC to employ a long-term CW-1
worker, the period of need identified in the CW-1 Application for
Temporary Employment Certification must not exceed 3 years.
(h) Return of applications based on USCIS CW-1 cap notice. (1)
Except as provided in paragraph (h)(3) of this section, if USCIS issues
a public notice stating that it has received a sufficient number of CW-
1 petitions to meet the statutory numerical limit on the total number
of foreign nationals who may be issued a CW-1 permit or otherwise
granted CW-1 status for the fiscal year, the OFLC Administrator must
return without review any CW-1 Applications for Temporary Employment
Certification with dates of need in that fiscal year received on or
after the date that the OFLC Administrator provides the notice in
paragraph (h)(2) of this section.
(2) The OFLC Administrator will announce the return of future CW-1
Applications for Temporary Employment Certification with dates of need
in the fiscal year for which the cap is met with a notice on the OFLC's
website. This notice will be effective on the date of its publication
on the OFLC's website and will remain valid for the fiscal year unless:
(i) USCIS issues a public notice stating additional CW-1 permits
are available for the fiscal year; and
(ii) The OFLC Administrator publishes a new notice announcing that
additional TLCs may be granted in the fiscal year.
(3) After the notice that OFLC will return future CW-1 Applications
for Temporary Employment Certification, the OFLC Administrator will
continue to process CW-1 Applications for Temporary Employment
Certification filed before the effective date of the suspension notice
and will continue to permit the filing of CW-1 Applications for
Temporary Employment Certification by employers who identify in the CW-
1 Application for Temporary Employment Certification that the
employment of all CW-1 workers employed under the CW-1 Application for
Temporary Employment Certification will be exempt from the statutory
numerical limit on the total number of foreign nationals who may be
issued a CW-1 permit or otherwise granted CW-1 status.
Sec. 655.421 Job contractor filing requirements.
(a) A job contractor may submit a CW-1 Application for Temporary
Employment Certification on behalf of itself and that employer-client.
By doing so, the Department deems the job contractor a joint employer.
(b) A job contractor must have separate contracts with each
different employer-client. A single contract or agreement may support
only one CW-1 Application for Temporary Employment Certification for
each employer-client job opportunity in the Commonwealth.
(c) Either the job contractor or its employer-client may submit an
Application for Prevailing Wage Determination describing the job
opportunity to the NPWC. However, each of the joint employers is
separately responsible for ensuring that the wage offer(s) listed in
the CW-1 Application for Temporary Employment Certification and related
recruitment at least equals the prevailing wage obtained from the NPWC,
or the Federal or Commonwealth minimum wage, whichever is highest, and
that all other wage obligations are met.
(d)(1) A job contractor that is filing as a joint employer with its
employer-client must submit to the NPC a completed CW-1 Application for
Temporary Employment Certification that clearly identifies the joint
employers (the job contractor and its employer-client) and the
employment relationship (including the places of employment), in
accordance with instructions provided by the OFLC Administrator. The
CW-1 Application for Temporary Employment Certification must bear the
original signature of the job contractor and the employer-client or use
a verifiable electronic signature method, consistent with the
requirements set forth at Sec. 655.420(d), and be accompanied by the
contract or agreement establishing
[[Page 12437]]
the employers' relationships related to the workers sought.
(2) By signing the CW-1 Application for Temporary Employment
Certification, each employer independently attests to the conditions of
employment required of an employer participating in the CW-1 program
and assumes full responsibility for the accuracy of the representations
made in the application and for all of the responsibilities of an
employer in the CW-1 program.
(e)(1) Either the job contractor or its employer-client may place
the required advertisements and conduct recruitment as described in
Sec. Sec. 655.442 through 655.445. Also, either one of the joint
employers may assume responsibility for interviewing applicants.
However, both of the joint employers must sign the recruitment report
that is submitted to the NPC meeting the requirement set forth in Sec.
655.446.
(2) All recruitment conducted by the joint employers must satisfy
the job offer assurance and advertising content requirements identified
in Sec. 655.441. Additionally, in order to fully inform applicants of
the job opportunity and avoid potential confusion inherent in a job
opportunity involving two employers, joint employer recruitment must
clearly identify both employers (the job contractor and its employer-
client) by name and must clearly identify the place(s) of employment
where workers will perform labor or services.
(3)(i) Provided that all of the employer-clients' job opportunities
are in the same occupation located in the Commonwealth and have the
same requirements and terms and conditions of employment, including
dates of employment, a job contractor may combine more than one of its
joint employer employer-clients' job opportunities in a single
advertisement. Each advertisement must fully inform potential workers
of the job opportunity available with each employer-client and
otherwise satisfy the job offer assurances and advertising content
requirements identified in Sec. 655.441. Such a shared advertisement
must clearly identify the job contractor by name, the joint employment
relationship, and the number of workers sought for each job
opportunity, identified by employer-client names and locations (e.g.,
five openings with Employer-Client A (place of employment location),
three openings with Employer-Client B (place of employment location)).
(ii) In addition, the advertisement must contain the following
statement: ``Applicants may apply for any or all of the jobs listed.
When applying, please identify the job(s) (by company and work
location) you are applying to for the entire period of employment
specified.'' If an applicant fails to identify one or more specific
work location(s), that applicant is presumed to have applied to all
work locations listed in the advertisement.
(f) If a TLC for the joint employers is granted, the Final
Determination certifying the CW-1 Application for Temporary Employment
Certification will be sent to both the job contractor and employer-
client.
Sec. 655.422 Emergency situations.
(a) Waiver of PWD requirement prior to application filing. The CO
may waive the requirement to obtain a PWD, as required under Sec.
655.410(c), prior to filing a CW-1 Application for Temporary Employment
Certification for employers that have good and substantial cause,
provided that the CO has sufficient time to thoroughly test the labor
market and to make a final determination as required by Sec. 655.450.
The requirement to obtain a PWD prior to filing the CW-1 Application
for Temporary Employment Certification, under Sec. 655.410(c), is the
only provision of this subpart which will be waived under these
emergency situation procedures.
(b) Employer requirements. The employer requesting a waiver of the
requirement to obtain a PWD must submit to the NPC a completed
Application for Prevailing Wage Determination, a completed CW-1
Application for Temporary Employment Certification, and a statement
justifying the waiver request. The employer's waiver request must
include detailed information describing the good and substantial cause
that has necessitated the waiver request. Good and substantial cause
may include, but is not limited to, the substantial loss of U.S.
workers due to an Act of God, or similar unforeseeable man-made
catastrophic events (such as a hazardous materials emergency or
government-controlled flooding), unforeseeable changes in market
conditions, pandemic health issues, or similar conditions that are
wholly outside of the employer's control. Issues related to the CW-1
visa cap are not good and substantial cause for a waiver of the filing
requirements. Further, a denial of a previously submitted CW-1
Application for Temporary Employment Certification or CW-1 petition
with USCIS does not constitute good and substantial cause necessitating
a waiver under this section.
(c) Processing of emergency applications. The CO will process the
emergency CW-1 Application for Temporary Employment Certification,
including the Application for Prevailing Wage Determination for the CW-
1 Program, in a manner consistent with the provisions of this subpart
and make a determination in accordance with Sec. 655.450. The CO will
notify the employer, if the application cannot be processed because,
pursuant to paragraph (a) of this section, the request for emergency
filing was not justified and/or the filing does not meet the
requirements set forth in this subpart.
Sec. 655.423 Assurances and obligations of CW-1 employers.
An employer employing CW-1 workers and/or workers in corresponding
employment under a CW-1 Application for Temporary Employment
Certification has agreed as part of the CW-1 Application for Temporary
Employment Certification that it will abide by the following conditions
with respect to its CW-1 workers and any workers in corresponding
employment:
(a) Rate of pay. (1) The offered wage in the work contract equals
or exceeds the highest of the prevailing wage, Federal minimum wage, or
Commonwealth minimum wage. The employer must pay at least the offered
wage, free and clear, during the entire period of the CW-1 Application
for Temporary Employment Certification granted by OFLC.
(2) The offered wage is not based on commissions, bonuses, or other
incentives, including paying on a piece-rate basis, unless the employer
guarantees a wage earned every workweek that equals or exceeds the
offered wage.
(3) If the employer requires one or more minimum productivity
standards of workers as a condition of job retention, the standards
must be specified in the work contract and the employer must
demonstrate that they are normal and usual for non-CW-1 employers for
the same occupation in the Commonwealth.
(4) An employer that pays on a piece-rate basis must demonstrate
that the piece-rate is no less than the normal rate paid by non-CW-1
employers to workers performing the same activity in the Commonwealth.
The average hourly piece-rate earnings must result in an amount at
least equal to the offered wage. If the worker is paid on a piece-rate
basis and at the end of the workweek the piece-rate does not result in
average hourly piece-rate earnings during the workweek at least equal
to
[[Page 12438]]
the amount the worker would have earned had the worker been paid at the
offered hourly wage, then the employer must supplement the worker's pay
at that time so that the worker's earnings are at least as much as the
worker would have earned during the workweek if the worker had instead
been paid at the offered hourly wage for each hour worked.
(b) Wages free and clear. The payment requirements for wages in
this section will be satisfied by the timely payment of such wages to
the worker either in cash or in negotiable instrument payable at par.
The payment must be made finally and unconditionally and ``free and
clear.'' The principles applied in determining whether deductions are
reasonable and payments are received free and clear, and the
permissibility of deductions for payments to third persons are
explained in more detail in 29 CFR part 531.
(c) Deductions. The employer must make all deductions from the
worker's paycheck required by law. The work contract must specify all
deductions not required by law that the employer will make from the
worker's pay; any such deductions not disclosed in the work contract
are prohibited. The wage payment requirements of paragraph (b) of this
section are not met where unauthorized deductions, rebates, or refunds
reduce the wage payment made to the worker below the minimum amounts
required by the offered wage or where the worker fails to receive such
amounts free and clear because the worker ``kick backs'' directly or
indirectly to the employer or to another person for the employer's
benefit the whole or part of the wages delivered to the worker.
Authorized deductions are limited to: Those required by law, such as
taxes payable by workers that are required to be withheld by the
employer and amounts due workers which the employer is required by
court order to pay to another; deductions for the reasonable cost or
fair value of board, lodging, and facilities furnished; and deductions
of amounts which are authorized to be paid to third persons for the
worker's account and benefit through his or her voluntary assignment or
order or which are authorized by a collective bargaining agreement with
bona fide representatives of workers which covers the employer.
Deductions for amounts paid to third persons for the worker's account
and benefit which are not so authorized or are contrary to law or from
which the employer, agent, or recruiter, including any agents or
employees of these entities or any affiliated person, derives any
payment, rebate, commission, profit, or benefit directly or indirectly,
may not be made if they reduce the actual wage paid to the worker below
the offered wage indicated on the CW-1 Application for Temporary
Employment Certification.
(d) Job opportunity is full time. The job opportunity is a full-
time position, consistent with Sec. 655.402, and the employer must use
a single workweek as its standard for computing wages due. An
employee's workweek must be a fixed and regularly recurring period of
168 hours--7 consecutive 24-hour periods. It need not coincide with the
calendar week but may begin on any day and at any hour of the day.
(e) Job qualifications and requirements. Each job qualification and
requirement must be listed in the work contract and must be bona fide
and consistent with the normal and accepted qualifications and
requirements imposed by non-CW-1 employers in the same occupation and
in the Commonwealth. The employer's job qualifications and requirements
imposed on U.S. workers must not be less favorable than the
qualifications and requirements that the employer is imposing or will
impose on CW-1 workers. A qualification means a characteristic that is
necessary to the individual's ability to perform the job in question. A
requirement means a term or condition of employment that a worker is
required to accept in order to obtain the job opportunity. The CO may
require the employer to submit documentation to substantiate the
appropriateness of any job qualification and/or requirement.
(f) Three-fourths guarantee--(1) Offer to worker. The employer must
guarantee to offer the worker employment for a total number of work
hours equal to at least three-fourths of the workdays of the total
period of employment specified in the work contract, beginning with the
first workday after the arrival of the worker at the place of
employment or the advertised contractual first date of need, whichever
is later, and ending on the expiration date specified in the work
contract or in its extensions, if any. See the exception in paragraph
(f)(1)(iv) of this section.
(i) For purposes of this paragraph (f), a workday means the number
of hours in a workday as stated in the work contract. The employer must
offer a total number of hours to ensure the provision of sufficient
work to reach the three-fourths guarantee. The work hours must be
offered during the work period specified in the work contract, or
during any modified work contract period to which the worker and
employer have mutually agreed and that has been approved by the CO.
(ii) In the event the worker begins working later than the start
date of need specified in the application, the guarantee period begins
with the first workday after the arrival of the worker at the place of
employment and continues until the last day during which the work
contract and all extensions thereof are in effect.
(iii) Therefore, if, for example, a work contract is for a 10-week
period, during which a normal workweek is specified as 6 days a week, 8
hours per day, the worker would have to be guaranteed employment for at
least 360 hours (10 weeks x 48 hours/week = 480 hours x 75 percent =
360). If a Federal holiday occurred during the 10-week period, the 8
hours would be deducted from the total hours for the work contract,
before the guarantee is calculated. Continuing with the above example,
the worker would have to be guaranteed employment for 354 hours (10
weeks x 48 hours/week = 480 hours-8 hours (Federal holiday) = 472 hours
x 75 percent = 354 hours).
(iv) A worker may be offered more than the specified hours of work
on a single workday. For purposes of meeting the guarantee, the worker
will not be required to work more than the number of hours specified in
the work contract for a workday but all hours of work actually
performed may be counted by the employer in calculating whether the
period of guaranteed employment has been met. If during the total work
contract period the employer affords the U.S. or CW-1 worker less
employment than that required under this paragraph (f)(1)(iv), the
employer must pay such worker the amount the worker would have earned
had the worker, in fact, worked for the guaranteed number of days. An
employer will not be considered to have met the work guarantee if the
employer has merely offered work on three-fourths of the workdays of
the work contract period if each workday did not consist of a full
number of hours of work time as specified in the work contract.
(2) Guarantee for piece-rate paid worker. If the worker is paid on
a piece-rate basis, the employer must use the worker's average hourly
piece-rate earnings or the offered wage, whichever is higher, to
calculate the amount due under the guarantee in accordance with
paragraph (f)(1) of this section.
(3) Failure to work. Any hours the worker fails to work, up to a
maximum of the number of hours specified in the work contract for a
workday, when the worker has been offered an opportunity to work in
accordance with paragraph (f)(1) of this section, and all hours of work
actually performed (including
[[Page 12439]]
voluntary work over 8 hours in a workday), may be counted by the
employer in calculating whether the period of guaranteed employment has
been met. An employer seeking to calculate whether the guaranteed
number of hours has been met must maintain the payroll records in
accordance with this subpart.
(g) Impossibility of fulfillment. If before the expiration date
specified in the work contract, the services of the worker are no
longer required for reasons beyond the control of the employer due to
fire, weather, or other Act of God, or similar unforeseeable man-made
catastrophic event (such as an oil spill or controlled flooding) that
is wholly outside the employer's control that makes the fulfillment of
the work contract impossible, the employer may terminate the work
contract with the approval of the CO. In the event of such termination,
the employer must fulfill a three-fourths guarantee, as described in
paragraph (f) of this section, for the time that has elapsed from the
start date listed in the work contract or the first workday after the
arrival of the worker at the place of employment, whichever is later,
to the time of its termination. The employer must make efforts to
transfer the CW-1 worker or worker in corresponding employment to other
comparable employment acceptable to the worker and consistent with
immigration laws, as applicable. If a transfer is not affected, the
employer must return the worker, at the employer's expense, to the
place from which the worker (disregarding intervening employment) came
to work for the employer, or transport the worker to the worker's next
certified CW-1 employer, whichever the worker prefers.
(h) Frequency of pay. The employer must state in the work contract
the frequency with which the worker will be paid, which must be at
least every 2 weeks. Employers must pay wages when due.
(i) Earnings statements. (1) The employer must keep accurate and
adequate records with respect to the workers' earnings, including but
not limited to: Records showing the nature, amount, and location(s) of
the work performed; the number of hours of work offered each day by the
employer (broken out by hours offered both in accordance with and over
and above the three-fourths guarantee in paragraph (f) of this
section); the hours actually worked each day by the worker; if the
number of hours worked by the worker is less than the number of hours
offered, the reason(s) the worker did not work; the time the worker
began and ended each workday; the rate of pay (both piece-rate and
hourly, if applicable); the worker's earnings per pay period; the
worker's home address; and the amount of and reasons for any and all
deductions taken from or additions made to the worker's wages.
(2) The employer must furnish to the worker on or before each
payday in one or more written statements the following information:
(i) The worker's total earnings for each workweek in the pay
period;
(ii) The worker's hourly rate or piece-rate of pay;
(iii) For each workweek in the pay period the hours of employment
offered to the worker (showing offers in accordance with the three-
fourths guarantee as determined in paragraph (f) of this section,
separate from any hours offered over and above the guarantee);
(iv) For each workweek in the pay period the hours actually worked
by the worker;
(v) An itemization of all deductions made from or additions made to
the worker's wages;
(vi) If piece-rates are used, the units produced daily;
(vii) The beginning and ending dates of the pay period; and
(viii) The employer's name, address, and FEIN.
(j) Transportation and visa fees--(1)(i) Transportation to the
place of employment. The employer must provide or reimburse the worker
for transportation and subsistence from the place from which the worker
has come to work for the employer, whether in the United States,
including another part of the Commonwealth, or abroad, to the place of
employment if the worker completes 50 percent of the period of
employment covered by the work contract (not counting any extensions).
The employer may arrange and pay for the transportation and subsistence
directly, advance at a minimum the most economical and reasonable
common carrier cost of the transportation and subsistence to the worker
before the worker's departure, or pay the worker for the reasonable
costs incurred by the worker. When it is the prevailing practice of
non-CW-1 employers in the occupation and in the Commonwealth to do so
or when the employer extends such benefits to similarly situated CW-1
workers, the employer must advance the required transportation and
subsistence costs (or otherwise provide them) to workers in
corresponding employment who are traveling to the employer's place of
employment from such a distance that the worker is not reasonably able
to return to their residence each day. The amount of the transportation
payment must be no less (and is not required to be more) than the most
economical and reasonable common carrier transportation charges for the
distances involved. The amount of the daily subsistence must be at
least the amount permitted in Sec. 655.173. Where the employer will
reimburse the reasonable costs incurred by the worker, it must keep
accurate and adequate records of: The costs of transportation and
subsistence incurred by the worker; the amount reimbursed; and the
date(s) of reimbursement. Note that the Fair Labor Standards Act
applies independently of the CW-1 requirements and imposes obligations
on employers regarding payment of wages.
(ii) Transportation from the place of employment. If the worker
completes the period of employment covered by the work contract (not
counting any extensions), or if the worker is dismissed from employment
for any reason by the employer before the end of the period, and the
worker has no immediate subsequent CW-1 employment, the employer must
provide or pay at the time of departure for the worker's cost of return
transportation and daily subsistence from the place of employment to
the place from which the worker, disregarding intervening employment,
departed to work for the employer. If the worker has contracted with a
subsequent employer that has not agreed in the work contract to provide
or pay for the worker's transportation from the former employer's place
of employment to such subsequent employer's place of employment, the
former employer must provide or pay for that transportation and
subsistence. If the worker has contracted with a subsequent employer
that has agreed in the work contract to provide or pay for the worker's
transportation from the former employer's place of employment to such
subsequent employer's place of employment, the subsequent employer must
provide or pay for such expenses.
(iii) Employer-provided transportation. All employer-provided
transportation must comply with all applicable Federal and Commonwealth
laws and regulations including, but not limited to, vehicle safety
standards, driver licensure requirements, and vehicle insurance
coverage.
(2) The employer must pay or reimburse the worker in the first
workweek for all visa, visa processing, border crossing, and other
related fees (including those mandated by the government) incurred by
the CW-1 worker, but not for passport expenses or
[[Page 12440]]
other charges primarily for the benefit of the worker.
(k) Employer-provided items. The employer must provide to the
worker, without charge or deposit charge, all tools, supplies, and
equipment required to perform the duties assigned.
(l) Disclosure of work contract. The employer must provide to a CW-
1 worker outside of the United States no later than the time at which
the worker applies for the visa, or to a worker in corresponding
employment no later than on the day work commences, a copy of the work
contract including any subsequent approved modifications. For a CW-1
worker changing employment from a CW-1 employer to a subsequent CW-1
employer, the copy must be provided no later than the time an offer of
employment is made by the subsequent CW-1 employer. The disclosure of
all documents required by this paragraph (l) must be provided in a
language understood by the worker. At a minimum, the work contract must
contain all of the provisions required to be included by this section.
In the absence of a separate, written work contract entered into
between the employer and the worker, the required terms of the
certified CW-1 Application for Temporary Employment Certification will
be the work contract.
(m) No unfair treatment. The employer has not and will not
intimidate, threaten, restrain, coerce, blacklist, discharge, or in any
manner discriminate against, and has not and will not cause any person
to intimidate, threaten, restrain, coerce, blacklist, discharge, or in
any manner discriminate against, any person who has, related to the CW-
1 program:
(1) Filed a complaint under or related to any applicable Federal or
Commonwealth laws and regulations;
(2) Instituted or caused to be instituted any proceeding under or
related to any applicable Federal or Commonwealth laws and regulations;
(3) Testified or is about to testify in any proceeding under or
related to any applicable Federal or Commonwealth laws and regulations;
(4) Consulted with a workers' center, community organization, labor
union, legal assistance program, or an attorney on matters related to
any applicable Federal or Commonwealth laws and regulations; or
(5) Exercised or asserted on behalf of himself/herself or others
any right or protection afforded by any applicable Federal or
Commonwealth laws and regulations.
(n) Comply with the prohibitions against employees paying fees. The
employer and its attorney, agents, or employees have not sought or
received payment of any kind from the worker for any activity related
to obtaining CW-1 labor certification or employment, including payment
of the employer's attorney or agent fees, application and CW-1 Petition
fees, recruitment costs, or any fees attributed to obtaining the
approved CW-1 Application for Temporary Employment Certification. For
purposes of this paragraph (n), payment includes, but is not limited
to, monetary payments, wage concessions (including deductions from
wages, salary, or benefits), kickbacks, bribes, tributes, in-kind
payments, and free labor. All wages must be paid free and clear. This
paragraph (n) does not prohibit employers or their agents from
receiving reimbursement for costs that are the responsibility and
primarily for the benefit of the worker, such as government-required
passport fees.
(o) Contracts with third parties to comply with prohibitions. The
employer must contractually prohibit in writing any agent or recruiter
(or any agent or employee of such agent or recruiter) whom the employer
engages, either directly or indirectly, in recruitment of CW-1 workers
to seek or receive payments or other compensation from prospective
workers. The contract must include the following statement: ``Under
this agreement, [name of agent, recruiter] and any agent of or employee
of [name of agent or recruiter] are prohibited from seeking or
receiving payments from any prospective employee of [employer name] at
any time, including before or after the worker obtains employment.
Payments include but are not limited to, any direct or indirect fees
paid by such employees for recruitment, job placement, processing,
maintenance, attorneys' fees, agent fees, application fees, or petition
fees.''
(p) Prohibition against preferential treatment of foreign workers.
The employer's job offer must offer to U.S. workers no less than the
same benefits, wages, and working conditions that the employer is
offering, intends to offer, or will provide to CW-1 workers. Job offers
may not impose on U.S. workers any restrictions or obligations that
will not be imposed on the employer's CW-1 workers. This does not
relieve the employer from providing to CW-1 workers at least the
minimum benefits, wages, and working conditions which must be offered
to U.S. workers consistent with this section.
(q) Nondiscriminatory hiring practices. The job opportunity is open
to any qualified U.S. worker as defined in Sec. 655.402, regardless of
race, color, national origin, age, sex, religion, disability, or
citizenship. Rejections of any U.S. workers who applied or apply for
the job must only be for lawful, job-related reasons, and those not
rejected on this basis have been or will be hired. In addition, the
employer has and will continue to retain records of all hired workers
and rejected applicants as required by Sec. 655.456.
(r) Recruitment requirements. The employer must conduct all
required recruitment activities, including any additional employer-
conducted recruitment activities as directed by the CO, and as
specified in Sec. Sec. 655.442 through 655.445.
(s) No strike or lockout. There is no strike or lockout at any of
the employer's place(s) of employment within the Commonwealth for which
the employer is requesting CW-1 certification at the time the CW-1
Application for Temporary Employment Certification is filed.
(t) No recent or future layoffs. The employer has not laid off and
will not lay off any similarly employed U.S. worker in the occupation
that is the subject of the CW-1 Application for Temporary Employment
Certification in the Commonwealth within the period beginning 270
calendar days before the date of need and through the end of the TLC's
period of certification. A layoff for lawful, job-related reasons such
as lack of work or the end of a season is permissible if all CW-1
workers are laid off before any U.S. worker in corresponding
employment.
(u) No work performed outside the Commonwealth and job opportunity.
The employer must not place any CW-1 workers employed under the
approved CW-1 Application for Temporary Employment Certification
outside the Commonwealth or in a job opportunity not listed on the
approved CW-1 Application for Temporary Employment Certification.
(v) Abandonment/termination of employment. Upon the separation from
employment of any worker employed under the CW-1 Application for
Temporary Employment Certification or workers in corresponding
employment, if such separation occurs before the end date of the
employment period specified in the CW-1 Application for Temporary
Employment Certification, the employer must notify OFLC in writing of
the separation from employment not later than 2 working days after such
separation is discovered by the employer. An abandonment or abscondment
is deemed to begin after a worker fails to report for work at the
regularly scheduled time for 5 consecutive working days without the
consent of the employer. If the
[[Page 12441]]
separation is due to the voluntary abandonment of employment by the CW-
1 worker or worker in corresponding employment or is terminated for
cause, and the employer provides appropriate notification specified
under this paragraph (v), the employer will not be responsible for
providing or paying for the subsequent transportation and subsistence
costs of that worker under this section, and that worker is not
entitled to the three-fourths guarantee described in paragraph (f) of
this section.
(w) Compliance with applicable laws. During the period of
employment specified on the CW-1 Application for Temporary Employment
Certification, the employer must comply with all applicable Federal and
Commonwealth employment-related laws and regulations, including health
and safety laws. This includes compliance with 18 U.S.C. 1592(a), with
respect to prohibitions against employers, the employer's agents, or
their attorneys knowingly holding, destroying or confiscating workers'
passports, visas, or other immigration documents.
Sec. Sec. 655.424-655.429 [Reserved]
Processing of an CW-1 Application for Temporary Employment
Certification
Sec. 655.430 Review of applications.
(a) NPC review. The CO will review the CW-1 Application for
Temporary Employment Certification for compliance with all applicable
program requirements, including compliance with the requirements set
forth in this subpart, and make a decision as to whether to issue a NOD
under Sec. 655.431 or a Notice of Acceptance (NOA) under Sec.
655.433.
(b) Mailing and postmark requirements. Any notice or request sent
by the CO to an employer requiring a response will be sent
electronically or via first class mail using the address, including
electronic mail address, provided on the CW-1 Application for Temporary
Employment Certification. The employer's response to such a notice or
request must be filed electronically or via first class mail. The
employer's response must be filed electronically or postmarked by the
date due or the next business day if the due date falls on a Saturday,
Sunday, or Federal Holiday.
(c) Information dissemination. OFLC may forward, to DHS or any
other Federal Government Official performing an investigation,
inspection, audit, or law enforcement function, information OFLC
receives in the course of processing a request for a CW-1 Application
for Temporary Employment Certification or of administering program
integrity measures such as audits.
Sec. 655.431 Notice of Deficiency.
(a) Notification. If the CO determines the CW-1 Application for
Temporary Employment Certification contains errors or inaccuracies, or
does not meet the requirements set forth in this subpart, the CO will
issue a NOD to the employer and, if applicable, the employer's attorney
or agent.
(b) Notice content. The NOD will:
(1) State the reason(s) the CW-1 Application for Temporary
Employment Certification fails to meet the criteria for acceptance;
(2) Offer the employer an opportunity to submit a modified CW-1
Application for Temporary Employment Certification within 10 business
days from the date of the NOD, and state the modification that is
required for the CO to issue a NOA; and
(3) State that if the employer does not comply with the
requirements of Sec. 655.432 for submitting a modified application,
the CO will deny the CW-1 Application for Temporary Employment
Certification.
Sec. 655.432 Submission of modified applications.
(a) Review of a modified CW-1 Application for Temporary Employment
Certification. Upon receipt of a response to a NOD, including any
modifications, the CO will review the response. The CO may issue one or
more additional NODs before issuing a decision. The employer's failure
to comply with a NOD, including not responding in a timely manner or
not providing all required documentation, will result in a denial of
the CW-1 Application for Temporary Employment Certification.
(b) Acceptance of a modified CW-1 Application for Temporary
Employment Certification. If the CO accepts the modification(s) to the
CW-1 Application for Temporary Employment Certification, the CO will
issue a NOA to the employer and, if applicable, the employer's attorney
or agent.
(c) Denial of modified CW-1 Application for Temporary Employment
Certification. If the modified CW-1 Application for Temporary
Employment Certification does not cure the deficiencies cited in the
NOD(s) or otherwise fails to satisfy the criteria required for
certification, the CO will, at its discretion, either send a second NOD
or deny the CW-1 Application for Temporary Employment Certification in
accordance with the labor certification determination provisions in
Sec. 655.453.
(d) Appeal from denial of modified CW-1 Application for Temporary
Employment Certification. The procedures for appealing a denial of a
modified CW-1 Application for Temporary Employment Certification are
the same as for appealing the denial of a nonmodified CW-1 Application
for Temporary Employment Certification, outlined in Sec. 655.461.
(e) Post acceptance modifications. Notwithstanding the decision to
accept the CW-1 Application for Temporary Employment Certification, the
CO may require modifications to the CW-1 Application for Temporary
Employment Certification at any time before the final determination to
grant or deny the CW-1 Application for Temporary Employment
Certification if the CO determines that the job offer does not contain
the minimum benefits, wages, and working conditions set forth in Sec.
655.441. The employer must make such modifications, or the application
will be denied under Sec. 655.453. The employer must provide all
workers recruited in connection with the job opportunity in the CW-1
Application for Temporary Employment Certification with a copy of the
modified CW-1 Application for Temporary Employment Certification, as
approved by the CO, no later than the date work commences.
Sec. 655.433 Notice of Acceptance.
(a) Notification. When the CO determines the CW-1 Application for
Temporary Employment Certification contains no errors or inaccuracies,
and meets the requirements set forth in this subpart, the CO will issue
a NOA to the employer and, if applicable, the employer's attorney or
agent.
(b) Notice content. The NOA must:
(1) Direct the employer to engage in recruitment of U.S. workers as
provided in Sec. Sec. 655.442 through 655.444, including any
additional recruitment ordered by the CO under Sec. 655.445;
(2) State that such employer-conducted recruitment must begin
within 14 calendar days from the date the NOA is issued, consistent
with Sec. 655.440(b);
(3) Require the employer to submit a report of its recruitment
efforts, by the date required by the CO in the NOA, as specified in
Sec. 655.446; and
(4) Advise the employer that failure to submit a complete
recruitment report by the deadline will lead to denial of the
application.
Sec. 655.434 Amendments to an application.
(a) Increases in number of workers. The CW-1 Application for
Temporary Employment Certification may be amended at any time before
the CO's certification determination to increase
[[Page 12442]]
the number of workers requested in the initial CW-1 Application for
Temporary Employment Certification by not more than 20 percent (50
percent for employers requesting less than 10 workers) without
requiring an additional recruitment period for U.S. workers. Requests
for increases above the percent prescribed, without additional
recruitment, may be approved by the CO only when the employer
demonstrates that the need for additional workers could not have been
foreseen and is wholly outside of the employer's control. All requests
to increase the number of workers must be made in writing and will not
be effective until approved by the CO. Upon acceptance of an amendment,
the employer must promptly provide copies of any approved amendments to
all U.S. workers recruited and hired under the original job offer.
(b) Minor changes to the period of employment. The CW-1 Application
for Temporary Employment Certification may be amended at any time
before the CO's certification determination to make minor changes
(meaning a change of up to 14 calendar days) in the total period of
employment, without requiring an additional recruitment period for U.S.
workers. Changes will not be effective until submitted in writing and
approved by the CO. In considering whether to approve the request, the
CO will review the reason(s) for the request, determine whether the
reason(s) are on the whole justified, and take into account the effect
any change(s) would have on the adequacy of the underlying test of the
domestic labor market for the job opportunity. An employer must
demonstrate that the change to the period of employment could not have
been foreseen and is wholly outside of the employer's control. The CO
will deny any request to change the period of employment where the
total amended period of employment will exceed the maximum applicable
duration permitted under Sec. 655.420(g). Upon acceptance of an
amendment, the employer must promptly provide copies of any approved
amendments to all U.S. workers recruited and hired under the original
job offer.
(c) Other minor amendments to the CW-1 Application for Temporary
Employment Certification. The employer may request other minor
amendments to the CW-1 Application for Temporary Employment
Certification at any time before the CO's certification determination
is issued. In considering whether to approve the request, the CO will
determine whether the proposed amendment(s) are sufficiently justified
and must take into account the effect of the changes on the underlying
labor market test for the job opportunity. All requests for minor
changes must be made in writing and will not be effective until
approved by the CO. Upon acceptance of an amendment, the employer must
promptly provide copies of any approved amendments to all U.S. workers
recruited and hired under the original job offer.
(d) Amendments after certification are not permitted. After the CO
has made a determination to certify the CW-1 Application for Temporary
Employment Certification, the employer may no longer request
amendments.
Sec. Sec. 655.435-655.439 [Reserved]
Post Acceptance Requirements
Sec. 655.440 Employer-conducted recruitment.
(a) Employer obligations. Employers must conduct recruitment of
U.S. workers to ensure that there are not qualified U.S. workers who
will be available for the positions listed in the CW-1 Application for
Temporary Employment Certification.
(b) Period to begin employer-conducted recruitment. Unless
otherwise instructed by the CO, the employer must begin the recruitment
required in Sec. Sec. 655.442 through 655.445 within 14 calendar days
from the date the NOA is issued. All employer-conducted recruitment
must be completed before the employer submits the recruitment report as
required in Sec. 655.446.
(c) Interviewing U.S. workers. Employers that wish to require
interviews must conduct those interviews by phone or provide a
procedure for the interviews to be conducted in the location where the
worker is being recruited so that the worker incurs little or no cost.
Employers cannot provide potential CW-1 workers with more favorable
treatment with respect to the requirement for, and conduct of,
interviews.
(d) Qualified and available U.S. workers. The employer must
consider all U.S. applicants for the job opportunity and must hire all
U.S. applicants who are qualified and who will be available for the job
opportunity. U.S. applicants may be rejected only for lawful, job-
related reasons, and those not rejected on this basis will be hired.
(e) Recruitment report. The employer must prepare a recruitment
report meeting the requirements of Sec. 655.446, by the date specified
by the CO in the NOA.
Sec. 655.441 Job offer assurances and advertising contents.
(a) General. All recruitment conducted under Sec. Sec. 655.442
through 655.445 in connection with an CW-1 Application for Temporary
Employment Certification must contain terms and conditions of
employment that are not less favorable than those offered to the CW-1
workers and must comply with the assurances applicable to job offers as
set forth in Sec. 655.423.
(b) Contents. All advertising must contain the following
information:
(1) The employer's name and contact information;
(2) A statement that the job opportunity is a temporary, full-time
position and identify the job title and total number of job openings
the employer intends to fill;
(3) A description of the job opportunity with sufficient
information to apprise applicants of the services or labor to be
performed, including the job duties, the minimum education and
experience requirements, the work hours and days, and the anticipated
start and end dates of the job opportunity;
(4) The place(s) of employment with enough specificity to apprise
applicants of any travel requirements and where applicants will likely
have to reside to perform the services or labor;
(5) The wage that the employer is offering, intends to offer or
will provide to the CW-1 workers or, in the event that there are
multiple wage offers, the range of applicable wage offers, each of
which must equal or exceed the highest of the prevailing wage or the
Federal or Commonwealth minimum wage;
(6) If applicable, a statement that overtime will be available to
the worker and specify the wage offer(s) for working any overtime
hours;
(7) The frequency with which the worker will be paid as required by
Sec. 655.423(h);
(8) A statement that the employer will make all deductions from the
worker's paycheck required by law, and must specify any deductions the
employer intends to make from the worker's paycheck which are not
required by law, including, if applicable, any deductions for the
reasonable cost of board, lodging, or other facilities;
(9) A statement summarizing the three-fourths guarantee as required
by Sec. 655.423(f);
(10) A statement that transportation and subsistence will be
provided to the worker while traveling from the worker's origin to the
place of employment as will the return transportation and subsistence
at the
[[Page 12443]]
conclusion of the job opportunity, as required by Sec. 655.423(j)(1);
(11) If applicable, a statement that daily transportation to and
from the place(s) of employment will be provided by the employer;
(12) If applicable, a statement that the employer will provide to
the worker, without charge or deposit charge, all tools, supplies, and
equipment required to perform the duties assigned, in accordance with
Sec. 655.423(k);
(13) If applicable, any board, lodging, or other facilities the
employer will offer to workers or intends to assist workers in
securing;
(14) If applicable, a statement indicating that on-the-job training
will be provided to the worker; and
(15) A statement that directs applicants to apply for the job
opportunity directly with the employer, and that indicates at least two
verifiable methods by which applicants may apply for the job
opportunity, one of which must be via electronic means, and that
provides the days and hours during which applicants may be interviewed
for the job opportunity.
Sec. 655.442 Place advertisement with CNMI Department of Labor.
(a) The employer must place an advertisement with the CNMI
Department of Labor for a period of 21 consecutive calendar days
satisfying the requirements set forth in Sec. 655.441.
(b) Documentation of this step must include:
(1) Either printouts of web pages in which the advertisement
appeared on the CNMI Department of Labor job listing system, or other
verifiable evidence from the CNMI Department of Labor containing the
text of the advertisement; and
(2) The dates of publication demonstrating compliance with the
requirement of this section.
Sec. 655.443 Contact with former U.S. workers.
The employer must contact (by mail or other effective means) its
former U.S. workers, including those who have been laid off within 270
calendar days before the date of need, employed by the employer in the
occupation at the place(s) of employment during the previous year
(except those who were dismissed for cause or who abandoned the
place(s) of employment), provide a copy of the CW-1 Application for
Temporary Employment Certification, and solicit their return to the
job. This contact must occur during the period of time that the job
offer is being advertised on the CNMI Department of Labor's job listing
system under Sec. 655.442. The employer must retain documentation
sufficient to prove such contact in accordance with Sec. 655.456. An
employer has no obligation to contact U.S. workers it terminated for
cause or who abandoned employment at any time during the previous year,
if the employer provided timely notice to the NPC of the termination or
abandonment in the manner described in Sec. 655.423(v).
Sec. 655.444 Notice of posting requirement.
The employer must post a copy of the CW-1 Application for Temporary
Employment Certification in at least two conspicuous locations at the
place(s) of employment or in some other manner that provides reasonable
notification to all employees in the job classification and area in
which the work will be performed by the CW-1 workers. Electronic
posting, such as displaying an electronic copy of the CW-1 Application
for Temporary Employment Certification prominently on any internal or
external website that is maintained by the employer and customarily
used for notices to employees about terms and conditions of employment,
is sufficient to meet this posting requirement as long as it otherwise
meets the requirements of this section. The notice must be posted for a
period of 21 consecutive calendar days. The employer must maintain
proof the CW-1 Application for Temporary Employment Certification was
posted and identify where and during what period of time it was posted
in accordance with Sec. 655.456.
Sec. 655.445 Additional employer-conducted recruitment.
(a) Requirement to conduct additional recruitment. The employer may
be instructed by the CO to conduct additional reasonable recruitment.
Such recruitment may be required at the discretion of the CO where the
CO has determined that there is a likelihood that U.S. workers who are
qualified will be available for the work.
(b) Nature of the additional employer-conducted recruitment. The CO
will describe the precise number and nature of the additional
recruitment efforts. Additional recruitment may include, but is not
limited to, advertising the job offer on the employer's website or
another electronic job search website; advertising with community-based
organizations, local unions, or trade unions; or other advertising
using a professional, trade, or other publication where such a
publication is appropriate for the workers likely to apply for the job
opportunity. When assessing the appropriateness of a particular
recruitment method, the CO will consider the cost of the additional
recruitment and the likelihood that the additional recruitment
method(s) will identify qualified and available U.S. workers.
(c) Proof of the additional employer-conducted recruitment. The CO
will specify the documentation or other supporting evidence that must
be retained by the employer as proof that the additional recruitment
requirements were met. Documentation must be retained as required in
Sec. 655.456.
Sec. 655.446 Recruitment report.
(a) Requirements of the recruitment report. No fewer than 2
calendar days after the last date on which the last advertisement
appeared, as required by the NOA issued under Sec. 655.433, the
employer must prepare, sign, and date a recruitment report. Where
recruitment was conducted by a job contractor or its employer-client,
both joint employers must sign the recruitment report in accordance
with Sec. 655.421(e)(1). The recruitment report must be submitted to
the NPC, by the date specified in the NOA, and contain the following
information:
(1) The name of each recruitment activity or source;
(2) The name and contact information of each U.S. worker who
applied or was referred to the job opportunity up to the date of the
preparation of the recruitment report, and the disposition of each
worker's application. The employer must clearly indicate whether the
job opportunity was offered to the U.S. worker and whether the U.S.
worker accepted or declined;
(3) Confirmation that the advertisement was posted on the CNMI
Department of Labor's job listing system and the dates of advertising;
(4) Confirmation that former U.S. employees were contacted, if
applicable, and by what means and the date(s) of contact;
(5) Confirmation the employer posted the availability of the job
opportunity to all employees in the job classification and area in
which the work will be performed by the CW-1 workers and the dates of
advertising;
(6) If applicable, confirmation that additional recruitment was
conducted as directed by the CO and the date(s) of advertising; and
(7) If applicable, for each U.S. worker who applied for the
position but was not hired, the lawful job-related reason(s) for not
hiring the U.S. worker.
(b) Duty to update and retain the recruitment report. The employer
must update the recruitment report throughout the recruitment period.
In a joint employment situation, either the
[[Page 12444]]
job contractor or the employer-client may update the recruitment report
throughout the recruitment period. The employer must retain the
recruitment report as required in Sec. 655.456.
Sec. Sec. 655.447-655.449 [Reserved]
Labor Certification Determinations
Sec. 655.450 Determinations.
Except as otherwise noted in this section, the OFLC Administrator
and CO(s), by virtue of delegation from the OFLC Administrator, have
the authority to certify or deny CW-1 Applications for Temporary
Employment Certification. The CO will certify the application only if
the employer has met all the requirements of this subpart, including
the criteria for certification in Sec. 655.451, thus demonstrating
that there is an insufficient number of U.S. workers in the
Commonwealth who are able, willing, qualified and who will be available
at the time and place of the job opportunity for which certification is
sought and that the employment of the CW-1 workers will not adversely
affect the wages and working conditions of similarly employed U.S.
workers.
Sec. 655.451 Criteria for temporary labor certification.
(a) The criteria for TLC include whether the employer has complied
with all of the requirements of this subpart, which are required to
grant the labor certification.
(b) In determining whether there are insufficient U.S. workers in
the Commonwealth to fill the employer's job opportunity, the CO will
count as available any U.S. worker who applied (or on whose behalf an
application is made) directly to the employer, but who was rejected by
the employer for other than a lawful job-related reason. In making this
determination, the CO will also consider the employer's contacts with
its former U.S. workers, including workers that have been laid off
within 270 calendar days before the date of need.
Sec. 655.452 Approved certification.
If the TLC is granted, the CO will send a Final Determination
notice and a copy of the certified CW-1 Application for Temporary
Employment Certification to the employer and a copy, if applicable, to
the employer's agent or attorney using an electronic method(s)
designated by the OFLC Administrator. For employers permitted to file
by mail as set forth in Sec. 655.420(c), the CO will send the Final
Determination notice and a copy of the certified CW-1 Application for
Temporary Employment Certification by first class mail. The CO will
send the certified CW-1 Application for Temporary Employment
Certification, including approved modifications, on behalf of the
employer, directly to USCIS using an electronic method(s) designated by
the OFLC Administrator. The employer must retain a copy of the
certified CW-1 Application for Temporary Employment Certification,
including the original signed Appendix C, as required by Sec. 655.456.
Sec. 655.453 Denied certification.
If an electronically filed TLC is denied, the CO will send the
Final Determination notice to the employer and a copy, if applicable,
to the employer's agent or attorney using an electronic method(s)
designated by the OFLC Administrator. For employers permitted to file
by mail as set forth in Sec. 655.420(c), the CO will send the Final
Determination notice by first class mail. The Final Determination
notice will:
(a) State the reason(s) certification is denied, citing the
relevant regulatory standards;
(b) Offer the employer an opportunity to request administrative
review of the denial under Sec. 655.461; and
(c) State that if the employer does not request administrative
review in accordance with Sec. 655.461, the denial is final, and the
Department will not accept any appeal on that CW-1 Application for
Temporary Employment Certification.
Sec. 655.454 Partial certification.
The CO may issue a partial certification, reducing either the
period of need or the number of CW-1 workers or both, based upon
information the CO receives during the course of processing the CW-1
Application for Temporary Employment Certification, an audit, or
otherwise. The number of workers certified will be reduced by one for
each U.S. worker who is able, willing, and qualified, and who will be
available at the time and place needed and who has not been rejected
for lawful, job-related reasons, to perform the labor or services. If a
partial labor certification is issued, the CO will send the Final
Determination notice approving partial certification using the
procedures at Sec. 655.452.
The Final Determination notice will:
(a) State the reason(s) the period of employment or the number of
CW-1 workers requested has been reduced, citing the relevant regulatory
standards;
(b) Offer the employer an opportunity to request administrative
review of the partial certification under Sec. 655.461; and
(c) State that if the employer does not request administrative
judicial review in accordance with Sec. 655.461, the partial
certification is final, and the Department will not accept any appeal
on that CW-1 Application for Temporary Employment Certification.
Sec. 655.455 Validity of temporary labor certification.
(a) Validity period. A TLC is valid only for the period of
employment as approved on the CW-1 Application for Temporary Employment
Certification. The certification expires after the last day of
authorized employment, including any approved extensions thereof.
(b) Scope of validity. A TLC is valid only for the number of CW-1
positions, the places of employment located in the Commonwealth, the
job classification and specific services or labor to be performed, and
the employer(s) specified on the approved CW-1 Application for
Temporary Employment Certification, including any approved
modifications. The TLC may not be transferred from one employer to
another unless the employer to which it is transferred is a successor
in interest to the employer to which it was issued.
Sec. 655.456 Document retention requirements for CW-1 employers.
(a) Entities required to retain documents. All CW-1 employers
filing a CW-1 Application for Temporary Employment Certification are
required to retain the documents and records establishing compliance
with this subpart, including but not limited to those specified in
paragraph (c) of this section.
(b) Period of record retention. The employer must retain records
and documents for 3 years from the date on which the certification of
the CW-1 Application for Temporary Employment Certification expires, or
3 years from the date of the final determination if the CW-1
Application for Temporary Employment Certification is denied, or 3
years from the date the Department receives the request for withdrawal
of a CW-1 Application for Temporary Employment Certification under
Sec. 655.462.
(c) Documents and records to be retained by all employers. All
employers filing a CW-1 Application for Temporary Employment
Certification must retain the following documents and records and must
provide the documents and records to the Department and any other
Federal Government Official in the event of an audit or investigation:
[[Page 12445]]
(1) Proof of recruitment efforts, including:
(i) Placement of the job offer with the CNMI Department of Labor as
specified in Sec. 655.442;
(ii) Contact with former U.S. employees as specified in Sec.
655.443, including documents demonstrating that each such U.S. worker
had been offered the job opportunity listed in the CW-1 Application for
Temporary Employment Certification, and that the U.S. worker either
refused the job opportunity or was rejected only for lawful, job-
related reasons;
(iii) Posting notice of the job opportunity to all employees in the
job classification and area in which the work will be performed by the
CW-1 workers as specified in Sec. 655.444; and
(iv) All additional employer-conducted recruitment required by the
CO as specified in Sec. 655.445.
(2) Documentation supporting the information submitted in the
recruitment report prepared in accordance with Sec. 655.446, such as
evidence of nonapplicability of contact with former workers as
specified in Sec. 655.443 and any supporting resumes and contact
information as specified in Sec. 655.446.
(3) Records of each worker's earnings, hours offered and worked,
location(s) where work is performed, and other information as specified
in Sec. 655.423(i).
(4) If applicable, records of reimbursement of transportation and
subsistence costs incurred by the workers, as specified in Sec.
655.423(j).
(5) Copies of written contracts with third parties demonstrating
compliance with the prohibition of seeking or receiving payments or
other compensation of any kind from prospective workers as specified in
Sec. 655.423(o).
(6) Evidence of the employer's contact with U.S. workers who
applied for the job opportunity in the CW-1 Application for Temporary
Employment Certification, including, but not limited to, documents
demonstrating that any rejections of U.S. workers were for lawful, job-
related reasons, as specified in Sec. 655.423(q).
(7) Written notice provided to and informing OFLC that a CW-1
worker or worker in corresponding employment has separated from
employment before the end date of employment specified in the CW-1
Application for Temporary Employment Certification, as specified in
Sec. 655.423(v).
(8) A copy of the CW-1 Application for Temporary Employment
Certification and all accompanying appendices, including any
modifications, amendments, or extensions, signed by the employer as
directed by the CO.
(d) Availability of documents and records for enforcement purposes.
The employer must make available to the Department, DHS or to any
Federal Government Official performing an investigation, inspection,
audit, or law enforcement function all documents and records required
to be retained under this subpart for purposes of copying,
transcribing, or inspecting them.
Sec. Sec. 655.457-655.459 [Reserved]
Post Certification Activities
Sec. 655.460 Extensions.
(a) Basis for extension. Under certain circumstances an employer
may apply for extensions of the period of employment. A request for
extension must be related to weather conditions or other factors beyond
the control of the employer (which may include unforeseen changes in
market conditions). Such requests must be supported in writing, with
documentation showing that the extension is needed and that the need
could not have been reasonably foreseen by the employer. The CO will
not grant an extension where the total period of employment under that
CW-1 Application for Temporary Employment Certification and the
authorized extension would exceed the maximum applicable duration
permitted under Sec. 655.420(g).
(b) Decision by the CO. The CO will notify the employer of the
decision in writing. The employer may appeal a denial of a request for
an extension by following the appeal procedures in Sec. 655.461.
(c) Obligations during period of extension. The CW-1 employer's
assurances and obligations under the TLC will continue to apply during
the extended period of employment. The employer must immediately
provide to its CW-1 workers and workers in corresponding employment a
copy of any approved extension.
Sec. 655.461 Administrative review.
(a) Request for review. Where authorized in this subpart, an
employer wishing review of a determination by the CO must request an
administrative review before BALCA of that determination to exhaust its
administrative remedies. In such cases, the request for review:
(1) Must be received by BALCA, and the CO who issued the
determination, within 10 business days from the date of the
determination;
(2) Must clearly identify the particular determination for which
review is sought;
(3) Must include a copy of the CO's determination;
(4) Must set forth the particular grounds for the request,
including the specific factual issues the requesting party alleges
needs to be examined in connection with the CO's determination;
(5) May contain any legal argument that the employer believes will
rebut the basis for the CO's determination, including any briefing the
employer wishes to submit; and
(6) May contain only such evidence as was actually before the CO at
the time of the CO's determination.
(b) Appeal File. After the receipt of a request for review, the CO
will send a copy of the Appeal File, as soon as practicable by means
normally assuring next-day delivery, to BALCA, the employer, the
employer's attorney or agent (if applicable), and the Associate
Solicitor for Employment and Training Legal Services, Office of the
Solicitor, U.S. Department of Labor (counsel).
(c) Assignment. The Chief ALJ will immediately, upon receipt of the
appeal file from the CO, assign either a single member or a three-
member panel of BALCA to consider a particular case.
(d) Administrative review--(1) Briefing schedule. If the employer
wishes to submit a brief on appeal, it must do so as part of its
request for review. Within 7 business days of receipt of the Appeal
File, the counsel for the CO may submit a brief in support of the CO's
decision and, if applicable, in response to the employer's brief.
(2) Standard of review. The ALJ must uphold the CO's decision
unless shown by the employer to be arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with the law.
(e) Scope of review. BALCA will affirm, reverse, or modify the CO's
determination, or remand to the CO for further action. BALCA will reach
this decision after due consideration of the documents in the Appeal
File that were before the CO at the time of the CO's determination, the
request for review, and any legal briefs submitted. BALCA may not
consider evidence not before the CO at the time of the CO's
determination, even if such evidence is in the Appeal File, request for
review, or legal briefs.
(f) Decision. The decision of BALCA must specify the reasons for
the action taken and must be provided to the employer, the CO, and
counsel for the CO within 7 business days of the submission of the CO's
brief or 10
[[Page 12446]]
business days after receipt of the Appeal File, whichever is later,
using means normally assuring expedited delivery.
Sec. 655.462 Withdrawal of a CW-1 Application for Temporary
Employment Certification.
(a) The employer may withdraw a CW-1 Application for Temporary
Employment Certification after it has been submitted to the NPC for
processing, including after the CO grants certification under Sec.
655.450. However, the employer is still obligated to comply with the
terms and conditions of employment contained in the CW-1 Application
for Temporary Employment Certification and work contract with respect
to all workers recruited and hired in connection with that application.
(b) To request withdrawal, the employer must submit a request in
writing to the NPC identifying the CW-1 Application for Temporary
Employment Certification and stating the reason(s) for the withdrawal.
Sec. 655.463 Public disclosure.
The Department will maintain an electronic file accessible to the
public with information on all employers applying for TLCs. The
database will include such information as the number of workers
requested, the date filed, the date decided, and the final disposition.
Sec. Sec. 655.464-655.469 [Reserved]
Integrity Measures
Sec. 655.470 Audits.
The CO may conduct audits of certified CW-1 Applications for
Temporary Employment Certification.
(a) Discretion. The CO has the sole discretion to choose the
certified applications selected for audit.
(b) Audit letter. Where an application is selected for audit, the
CO will issue an audit letter to the employer and a copy, if
appropriate, to the employer's attorney or agent. The audit letter
will:
(1) Specify the documentation that must be submitted by the
employer;
(2) Specify a date, no more than 30 calendar days from the date the
audit letter is issued, by which the required documentation must be
sent to the CO; and
(3) Advise that failure to comply fully with the audit process may
result:
(i) In the requirement that the employer undergo the assisted
recruitment procedures in Sec. 655.471 in future filings of CW-1
Applications for Temporary Employment Certification for a period of up
to 2 years; or
(ii) In a revocation of the certification or debarment from the CW-
1 program and any other foreign labor certification program
administered by the Department.
(c) Supplemental information request. During the course of the
audit examination, the CO may request supplemental information or
documentation from the employer in order to complete the audit. If
circumstances warrant, the CO can issue one or more requests for
supplemental information.
(d) Potential referrals. In addition to measures in this subpart,
the CO may decide to provide the audit findings and underlying
documentation to DHS or other appropriate enforcement agencies. The CO
may refer any findings that an employer discouraged a qualified U.S.
worker from applying, or failed to hire, discharged, or otherwise
discriminated against a qualified U.S. worker, to the Department of
Justice, Civil Rights Division, Immigrant and Employee Rights Section.
Sec. 655.471 Assisted recruitment.
(a) Requirement of assisted recruitment. If, as a result of audit
or otherwise, the CO determines that a violation has occurred that does
not warrant debarment, the CO may require the employer to engage in
assisted recruitment for a defined period of time for any future CW-1
Application for Temporary Employment Certification.
(b) Notification of assisted recruitment. The CO will notify the
employer (and its attorney or agent, if applicable) in writing of the
assisted recruitment that will be required of the employer for a period
of up to 2 years from the date the notice is issued. The notification
will state the reasons for the imposition of the additional
requirements, state that the employer's agreement to accept the
conditions will constitute their inclusion as bona fide conditions and
terms of a CW-1 Application for Temporary Employment Certification, and
offer the employer an opportunity to request an administrative review.
If administrative review is requested, the procedures in Sec. 655.461
apply.
(c) Assisted recruitment. The assisted recruitment process will be
in addition to any recruitment required of the employer by Sec. Sec.
655.442 through 655.445 and may consist of, but is not limited to, one
or more of the following:
(1) Requiring the employer to submit a draft advertisement to the
CO for review and approval at the time of filing the CW-1 Application
for Temporary Employment Certification;
(2) Designating the sources where the employer must recruit for
U.S. workers in the Commonwealth and directing the employer to place
the advertisement(s) in such sources;
(3) Extending the length of the placement of the advertisements;
(4) Requiring the employer to notify the CO in writing when the
advertisement(s) are placed;
(5) Requiring an employer to perform any additional assisted
recruitment directed by the CO;
(6) Requiring the employer to provide proof of the publication of
all advertisements as directed by the CO;
(7) Requiring the employer to provide proof of all U.S. workers who
applied (or on whose behalf an application is made) in response to the
employer's recruitment efforts;
(8) Requiring the employer to submit any proof of contact with all
referrals and former U.S. workers; or
(9) Requiring the employer to provide any additional documentation
verifying it conducted the assisted recruitment as directed by the CO.
(d) Failure to comply. If an employer materially fails to comply
with requirements ordered by the CO under this section, the
certification will be denied and the employer and its attorney or agent
may be debarred under Sec. 655.473.
Sec. 655.472 Revocation.
(a) Basis for revocation. The OFLC Administrator may revoke a TLC
approved under this subpart, if the OFLC Administrator finds:
(1) The issuance of the TLC was not justified due to fraud or
misrepresentation of a material fact in the application process;
(2) The employer substantially failed to comply with any of the
terms or conditions of the approved TLC. A substantial failure is a
failure to comply that constitutes a significant deviation from the
terms and conditions of the approved certification and is further
defined in Sec. 655.473(d); or
(3) The employer impeded the audit process, as set forth in Sec.
655.470, or impeded any Federal Government Official performing an
investigation, inspection, audit, or law enforcement function.
(b) DOL procedures for revocation--(1) Notice of Revocation. If the
OFLC Administrator makes a determination to revoke an employer's TLC,
the OFLC Administrator will issue a Notice of Revocation to the
employer (and its attorney or agent, if applicable). The notice will
contain a detailed statement of the grounds for the revocation and
inform the employer of its right to submit rebuttal evidence to the
OFLC Administrator or to request administrative review of the Notice of
[[Page 12447]]
Revocation by BALCA. If the employer does not submit rebuttal evidence
or request administrative review within 10 business days from the date
the Notice of Revocation is issued, the notice will become the final
agency action and will take effect immediately at the end of the 10
business days.
(2) Rebuttal. If the employer timely submits rebuttal evidence, the
OFLC Administrator will inform the employer of the final determination
on the revocation within 10 business days of receiving the rebuttal
evidence. If the OFLC Administrator determines that the certification
must be revoked, the OFLC Administrator will inform the employer of its
right to appeal the final determination to BALCA according to the
procedures of Sec. 655.461. If the employer does not appeal the final
determination, it will become the final agency action.
(3) Request for review. An employer may appeal a Notice of
Revocation or a final determination of the OFLC Administrator after the
review of rebuttal evidence to BALCA, according to the appeal
procedures of Sec. 655.461. The ALJ's decision is the final agency
action.
(4) Stay. The timely submission of rebuttal evidence or a request
for administrative review will stay the revocation pending the outcome
of the proceeding.
(5) Decision. If the TLC is revoked, the OFLC Administrator will
provide copies of final revocation decisions to DHS and DOS promptly.
(c) Employer's obligations in the event of revocation. If an
employer's TLC is revoked, the employer is responsible for:
(1) Reimbursement of actual inbound transportation and other
required expenses;
(2) The workers' outbound transportation and other required
expenses;
(3) Payment to the workers of the amount due under the three-
fourths guarantee; and
(4) Any other wages, benefits, and working conditions due or owing
to the workers under this subpart.
Sec. 655.473 Debarment.
(a) Debarment of an employer, agent, or attorney. The OFLC
Administrator may debar an employer, agent, attorney, or any successor
in interest to that employer, agent, or attorney, from participating in
any action under this subpart, subject to the time limits set forth in
paragraph (c) of this section, if the OFLC Administrator finds that the
employer, agent, or attorney substantially violated a material term or
condition of the Application for Prevailing Wage Determination or CW-1
Application for Temporary Employment Certification, as defined in
paragraph (d) of this section. The OFLC Administrator will provide
copies of final debarment decisions to DHS and DOS promptly.
(b) Effect on future applications in all foreign labor programs.
The debarred employer, or a debarred agent or attorney, or any
successor in interest to any debarred employer, agent, or attorney,
will be disqualified from filing any labor certification applications
or labor condition applications with the Department subject to the term
limits set forth in paragraph (c) of this section. If such an
application is filed, it will be denied without review.
(c) Period of debarment. No employer, agent, or attorney may be
debarred under this subpart for more than 5 years for a single
violation.
(d) Definition of violation. For the purposes of this section, a
violation of a material term or condition of the Application for
Prevailing Wage Determination or CW-1 Application for Temporary
Employment Certification includes:
(1) One or more acts of commission or omission on the part of the
employer or the employer's agent or attorney that involve:
(i) Failure to pay or provide the required wages, benefits, or
working conditions to the employer's CW-1 workers or workers in
corresponding employment;
(ii) Failure, except for lawful, job-related reasons, to offer
employment to qualified U.S. workers who applied for the job
opportunity for which certification was sought;
(iii) Failure to comply with the employer's obligations to recruit
U.S. workers;
(iv) Improper layoff or displacement of U.S. workers or workers in
corresponding employment;
(v) Failure to comply with the NOD process, as set forth in Sec.
655.431, or the assisted recruitment process, as set forth in Sec.
655.471;
(vi) Impeding the audit process, as set forth in Sec. 655.470, or
impeding any Federal Government Official performing an investigation,
inspection, audit, or law enforcement function;
(vii) Employing a CW-1 worker outside of the Commonwealth, in an
activity not listed in the work contract, or outside the validity
period of employment of the work contract, including any approved
extension thereof;
(viii) A violation of the requirements of Sec. 655.423(n) or (o);
(ix) A violation of any of the provisions listed in Sec.
655.423(q); or
(x) Any other act showing such flagrant disregard for the law that
future compliance with program requirements cannot reasonably be
expected;
(2) Fraud involving the Application for Prevailing Wage
Determination or the CW-1 Application for Temporary Employment
Certification under this subpart; or
(3) A material misrepresentation of fact during the course of
processing the CW-1 Application for Temporary Employment Certification.
(e) Determining whether a violation is substantial. In determining
whether a violation is substantial as to merit debarment, the factors
the OFLC Administrator may consider include, but are not limited to,
the following:
(1) Previous history of violation(s) under the CW-1 program;
(2) The number of CW-1 workers, workers in corresponding
employment, or U.S. workers who were or are affected by the
violation(s);
(3) The gravity of the violation(s); or
(4) The extent to which the violator achieved a financial gain due
to the violation(s), or the potential financial loss or potential
injury to the worker(s).
(f) Debarment procedure--(1) Notice of Debarment. If the OFLC
Administrator makes a determination to debar an employer, agent,
attorney, or any successor in interest to that employer, agent, or
attorney, the OFLC Administrator will issue the party a Notice of
Debarment. The notice will state the reason(s) for the debarment
finding, including a detailed explanation of the grounds for and the
duration of the debarment, and it will inform the party subject to the
notice of its right to submit rebuttal evidence to the OFLC
Administrator, or to request administrative review of the decision by
BALCA. If the party does not file rebuttal evidence or a request for
review within 30 calendar days of the date of the Notice of Debarment,
the notice is the final agency action and the debarment will take
effect on the date specified in the notice or if no date is specified,
at the end of 30 calendar days The timely filing of rebuttal evidence
or a request for review stays the debarment pending the outcome of the
appeal as provided in paragraphs (f)(2) through (6) of this section.
(2) Rebuttal. The party who received the Notice of Debarment may
choose to submit evidence to rebut the grounds stated in the notice
within 30 calendar days of the date the notice is issued. If rebuttal
evidence is timely filed, the OFLC Administrator will issue a Final
Determination on the debarment within
[[Page 12448]]
30 calendar days of receiving the rebuttal evidence. If the OFLC
Administrator determines that the party must be debarred, the OFLC
Administrator will issue a Final Determination and inform the party of
its right to request administrative review of the debarment by BALCA
according to the procedures in this section. The party must request
review within 30 calendar days after the date of the Final
Determination, or the Final Determination will be the final agency
order and the debarment will take effect on the date specified in the
Final Determination or if no date is specified, at the end of 30
calendar days.
(3) Request for review. (i) The recipient of a Notice of Debarment
or Final Determination seeking to challenge the debarment must request
review of the debarment within 30 calendar days of the date of the
Notice of Debarment or the date of the Final Determination by the OFLC
Administrator after review of rebuttal evidence submitted under
paragraph (f)(2) of this section. A request for review of debarment
must be sent in writing to the Chief ALJ, United States Department of
Labor, with a simultaneous copy served on the OFLC Administrator; the
request must clearly identify the particular debarment determination
for which review is sought; and must set forth the particular grounds
for the request. If no timely request for review is filed, the
debarment will take effect on the date specified in the Notice of
Debarment or Final Determination, or if no date is specified, 30
calendar days from the date the Notice of Debarment or Final
Determination is issued.
(ii) Upon receipt of a request for review, the OFLC Administrator
will promptly send a certified copy of the ETA case file to the Chief
ALJ by means normally assuring expedited delivery. The Chief ALJ will
immediately assign an ALJ to conduct the review.
(iii) Statements, briefs, and other submissions of the parties must
contain only legal argument and only such evidence that was within the
record upon which the debarment was based, including any rebuttal
evidence submitted pursuant to paragraph (f)(2) of this section.
(4) Review by the ALJ. (i) In considering requests for review, the
ALJ must afford all parties 30 days to submit or decline to submit any
appropriate Statement of Position or legal brief. The ALJ must review
the debarment determination on the basis of the record upon which the
decision was made, the request for review, and any Statements of
Position or legal briefs submitted.
(ii) The ALJ's final decision must affirm, reverse, or modify the
OFLC Administrator's determination. The ALJ's decision will be provided
to the parties by expedited mail. The ALJ's decision is the final
agency action, unless either party, within 30 calendar days of the
ALJ's decision, seeks review of the decision with the Administrative
Review Board (ARB).
(5) Review by the ARB. (i) Any party wishing review of the decision
of an ALJ must, within 30 calendar days of the decision of the ALJ,
petition the ARB to review the decision. Copies of the petition must be
served on all parties and on the ALJ. The ARB will decide whether to
accept the petition within 30 calendar days of receipt. If the ARB
declines to accept the petition, or if the ARB does not issue a notice
accepting a petition within 30 calendar days after the receipt of a
timely filing of the petition, the decision of the ALJ is the final
agency action. If a petition for review is accepted, the decision of
the ALJ will be stayed unless and until the ARB issues an order
affirming the decision. The ARB must serve notice of its decision to
accept or not to accept the petition upon the ALJ and upon all parties
to the proceeding.
(ii) Upon receipt of the ARB's notice to accept the petition, the
Office of Administrative Law Judges will promptly forward a copy of the
complete appeal record to the ARB.
(iii) Where the ARB has determined to review the decision and
order, the ARB will notify each party of the issue(s) raised, the form
in which submissions must be made (e.g., briefs or oral argument), and
the time within which the presentation must be submitted.
(6) ARB Decision. The ARB's final decision must be issued within 90
calendar days from the notice granting the petition and served upon all
parties and the ALJ.
Sec. Sec. 655.474-655.499 [Reserved]
Signed at Washington, DC.
Molly E. Conway,
Acting Assistant Secretary for Employment and Training, Labor.
[FR Doc. 2019-05937 Filed 3-27-19; 11:15 am]
BILLING CODE 4510-FP-P
