Attestations by Employers Using Non-Immigrant Aliens in Specialty Occupations

Published on AidPage by IDILOGIC on Jun 24, 2005

Administered by:

US Federal Government Agency (see all agencies)
Department of Labor , Employment and Training Administration
CFDA #: 17.252

Purpose of this program:

To provide greater protection for U.S. and foreign workers without interfering with an employer's right to obtain temporary aliens to work in specialty occupations.

Possible uses and use restrictions...

Under Section 101(a)(15)(H)(i)(b) of the Act, nonimmigrant aliens cannot be admitted to work in a specialty occupation or as a fashion model unless the Secretary of Labor determines and certifies to the Attorney General the intending employer filed with and had approved by the Secretary an application under section 212(n)(1). The labor condition application requires the employer to attest to certain elements regarding working conditions and wages of alien and U.S. workers.

Who is eligible to apply...

Any employer can file a labor condition application with the regional office of the Employment and Training Administration. Approved applications are returned to the employer to be filed in support of the petition to be filed with the Immigration and Naturalization Service which makes the final decision whether to grant or deny the admission of foreign workers.

Eligible Applicant Categories:
Eligible Functional Categories:
Credentials/Documentation

Aliens must document to the Immigration and Naturalization Service that they possess the qualifications to perform services in a specialty occupation as described and defined in section 214(i) of the Act, or as a fashion model of distinguished merit and ability.

Note:This is a brief description of the credentials or documentation required prior to, or along with, an application for assistance.

About this section:

This section indicates who can apply to the Federal government for assistance and the criteria the potential applicant must satisfy. For example, individuals may be eligible for research grants, and the criteria to be satisfied may be that they have a professional or scientific degree, 3 years of research experience, and be a citizen of the United States. Universities, medical schools, hospitals, or State and local governments may also be eligible. Where State governments are eligible, the type of State agency will be indicated (State welfare agency or State agency on aging) and the criteria that they must satisfy.

Certain federal programs (e.g., the Pell Grant program which provides grants to students) involve intermediate levels of application processing, i.e., applications are transmitted through colleges or universities that are neither the direct applicant nor the ultimate beneficiary. For these programs, the criteria that the intermediaries must satisfy are also indicated, along with intermediaries who are not eligible.

How to apply...

Application Procedure:

Employers contact the appropriate office of the Employment and Training Administration and aliens contact a U.S. Consul abroad of the Immigration and Naturalization Service in the United States.

Note: Each program will indicate whether applications are to be submitted to the Federal headquarters, regional or local office, or to a State or local government office.

Award Procedure:

None.

Note: Grant payments may be made by a letter of credit, advance by Treasury check, or reimbursement by Treasury check. Awards may be made by the headquarters office directly to the applicant, an agency field office, a regional office, or by an authorized county office. The assistance may pass through the initial applicant for further distribution by intermediate level applicants to groups or individuals in the private sector.

Deadlines and process...

Deadlines

None.

Note: When available, this section indicates the deadlines for applications to the funding agency which will be stated in terms of the date(s) or between what dates the application should be received. When not available, applicants should contact the funding agency for deadline information.

Range of Approval/Disapproval Time

From 1 to 7 days.

Preapplication Coordination

None. This program is excluded from coverage under E.O. 12372.

Note: This section indicates whether any prior coordination or approval is required with governmental or nongovernmental units prior to the submission of a formal application to the federal funding agency.

Appeals

No procedure for appealing ETA's determination to accept or reject a Labor Condition Application. Complaints regarding misrepresentation in the attestation or failure of the employer to carry out the terms of the attestation may be filed with the Wage and Hour Division, Employment Standards Administration, Department of Labor.

Note: In some cases, there are no provisions for appeal. Where applicable, this section discusses appeal procedures or allowable rework time for resubmission of applications to be processed by the funding agency. Appeal procedures vary with individual programs and are either listed in this section or applicants are referred to appeal procedures documented in the relevant Code of Federal Regulations (CFR).

Renewals

Treated as filing of new labor condition applications.

Note: In some instances, renewal procedures may be the same as for the application procedure, e.g., for projects of a non-continuing nature renewals will be treated as new, competing applications; for projects of an ongoing nature, renewals may be given annually.

Who can benefit...

Employers and aliens to be employed in specialty occupations or as fashion models.

Beneficiaries
About this section:

This section lists the ultimate beneficiaries of a program, the criteria they must satisfy and who specifically is not eligible. The applicant and beneficiary will generally be the same for programs that provide assistance directly from a Federal agency. However, financial assistance that passes through State or local governments will have different applicants and beneficiaries since the assistance is transmitted to private sector beneficiaries who are not obligated to request or apply for the assistance.

What types of assistance...

Provision of Specialized Services

Programs which provide Federal personnel directly to perform certain tasks for the benefit of communities or individuals. These services may be performed in conjunction with nonfederal personnel, but they involve more than consultation, advice, or counseling.

How much financial aid...

Range and Average of Financial Assistance

Not applicable.

Note: This section lists the representative range (smallest to largest) of the amount of financial assistance available. These figures are based upon funds awarded in the past fiscal year and the current fiscal year to date. Also indicated is an approximate average amount of awards which were made in the past and current fiscal years.

Obligations

FY 03 est $5,750,000; FY 04 est $2,491,000 and FY 05 $0. Funds used are 32 percent of the total received from a $1,000 fee charged employers for each H-1B attestation processed by INS. Fee collection terminated September 30,2003.

Note: The dollar amounts listed in this section represent obligations for the past fiscal year (PY), estimates for the current fiscal year (CY), and estimates for the budget fiscal year (BY) as reported by the Federal agencies. Obligations for non-financial assistance programs indicate the administrative expenses involved in the operation of a program.

Account Identification

16-0179-0-1-504.

Note: Note: This 11-digit budget account identification code represents the account which funds a particular program. This code should be consistent with the code given for the program area as specified in Appendix III of the Budget of the United States Government.

Examples of funded projects...

Not applicable.

About this section

This section indicates the different types of projects which have been funded in the past. Only projects funded under Project Grants or Direct Payments for Specified Use should be listed here. The examples give potential applicants an idea of the types of projects that may be accepted for funding. The agency should list at least five examples of the most recently funded projects.

Program accomplishments...

In fiscal year 2003, 284,799 attestations were received and processed.

Criteria for selecting proposals...

Not applicable.

Assistance considerations...

Length and Time Phasing of Assistance

Not applicable.

Formula and Matching Requirements

Not applicable.

Note:
A formula may be based on population, per capita income, and other statistical factors. Applicants are informed whether there are any matching requirements to be met when participating in the cost of a project. In general, the matching share represents that portion of the project costs not borne by the Federal government. Attachment F of OMB Circular No. A-102 (Office of Management and Budget) sets forth the criteria and procedures for the evaluation of matching share requirements which may be cash or in-kind contributions made by State and local governments or other agencies, institutions, private organizations, or individuals to satisfy matching requirements of Federal grants or loans.

Cash contributions represent the grantees' cash outlay, including the outlay of money contributed to the grantee by other public agencies, institutions, private organizations, or individuals. When authorized by Federal regulation, Federal funds received from other grants may be considered as the grantees' cash contribution.

In-kind contributions represent the value of noncash contributions provided by the grantee, other public agencies and institutions, private organizations or individuals. In-kind contributions may consist of charges for real property and equipment, and value of goods and services directly benefiting and specifically identifiable to the grant program. When authorized by Federal legislation, property purchased with Federal funds may be considered as grantees' in-kind contribution.

Maintenance of effort (MOE) is a requirement contained in certain legislation, regulations, or administrative policies stating that a grantee must maintain a specified level of financial effort in a specific area in order to receive Federal grant funds, and that the Federal grant funds may be used only to supplement, not supplant, the level of grantee funds.

Post assistance requirements...

Reports

The Employment and Training Administration compiles and maintains on a current basis for public examination in Washington, DC, a list of the labor condition applications. Such list is by employer, showing the occupational classification(s), wage rate(s), number of aliens sought, period(s) of intended employment, and date(s) of need for each employer's application.

Note: This section indicates whether program reports, expenditure reports, cash reports or performance monitoring are required by the Federal funding agency, and specifies at what time intervals (monthly, annually, etc.) this must be accomplished.

Audits

Employer has to make a filed labor condition application and necessary supporting documentation available for public examination at the employer's principal place of business in the U.S., or at the place of employment within one working day after the date on which the labor condition application is filed with the Employment and Training Administration. Complaints concerning misrepresentation in the attestation or failure of the employer to carry out the terms of the attestation may be filed with the Wage and Hour Division, Employment Standards Administration, Department of Labor. The Administrator, Wage and Hour Division, performs all the Secretary's investigative and enforcement functions under 8 U.S.C. 1182(n) and subparts I and K of 29 CFR Part 504.

Note: This section discusses audits required by the Federal agency. The procedures and requirements for State and local governments and nonprofit entities are set forth in OMB Circular No. A-133. These requirements pertain to awards made within the respective State's fiscal year - not the Federal fiscal year, as some State and local governments may use the calendar year or other variation of time span designated as the fiscal year period, rather than that commonly known as the Federal fiscal year (from October 1st through September 30th).

Records

Employer shall make the LCA and necessary supporting documentation available for public examination at the employer's principal place of business in the U.S. or at the place of employment within one working day after the date on which the LCA is filed with ETA.

Note: This section indicates the record retention requirements and the type of records the Federal agency may require. Not included are the normally imposed requirements of the General Accounting Office. For programs falling under the purview of OMB Circular No. A-102, record retention is set forth in Attachment C. For other programs, record retention is governed by the funding agency's requirements.

Regulations...

Authorization

Immigration and Nationality Act of 1952, as amended, Sections 101(a)(15)(H), 212(n), 214(c) and 214(i); Public Law 82-414, 66 Stat. 163, 8 U.S.C. 1101 et seq.; Immigration Act of 1990, Public Law 101-649, 104 Stat. 4978, 8 U.S.C. 1182(n) and 1184; Public Law 102-232, 105 Stat. 1733, 8 U.S.C. 1182 note.

Note: This section lists the legal authority upon which a program is based (acts, amendments to acts, Public Law numbers, titles, sections, Statute Codes, citations to the U.S. Code, Executive Orders, Presidential Reorganization Plans, and Memoranda from an agency head).

Regulations, Guidelines, And Literature

Further information concerning the program may be found at 20 CFR 655 and 29 CFR 504.

Contact information...

Web Sites
Regional Or Local Office

Contact the local office of the State Employment Service and Employment and Training Administration regional offices listed in Additional Contact Information - FMR Help.

Note: This section lists the agency contact person, address and telephone number of the Federal Regional or Local Office(s) to be contacted for detailed information regarding a program such as: (1) current availability of funds and the likelihood of receiving assistance within a given period; (2) pre-application and application forms required; (3) whether a pre-application conference is recommended; (4) assistance available in preparation of applications; (5) whether funding decisions are made at the headquarters, regional or local level; (6) application renewal procedures (including continuations and supplementals) or appeal procedures for rejected applications; and (7) recently published program guidelines and material. However, for most federal programs, this section will instruct the reader to consult the so-called Appendix IV of the Catalog due to the large volume of Regional and Local Office Contacts for most agencies. This information is provided in Additional Contact Information (see below).

Headquarters Office

Director, Office of National Programs, Employment and Training Administration, Department of Labor, 200 Constitution Avenue, NW, C-4312, Washington, DC 20210. Telephone: (202) 693- 3010. Contact: John Beverly.

Note: This section lists names and addresses of the office at the headquarters level with direct operational responsibility for managing a program. A telephone number is provided in cases where a Regional or Local Office is not normally able to answer detailed inquiries concerning a program. Also listed are the name(s) and telephone number(s) of the information contact person(s) who can provide additional program information to applicants.

Additional Contact Information (Appendix IV)

Due to the large volume of regional and local office contacts for most agencies, full contact information is also provided separately here in a PDF format: