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September 21, 2000
BY HAND DELIVERY
Assistant Secretary for Employment and Training
ATTN: Division of Foreign Labor Certifications
Office of Workforce Security
Employment and Training Administration
U.S. Department of Labor
Room C-4318
200 Constitution Avenue, N.W.
Washington, DC 20210
Administrator
Wage and Hour Division
ATTN: Immigration Team
U.S. Department of Labor
Room S-3502
200 Constitution Avenue, N.W.
Washington, DC 20503
Re: AILA Comments on DOL Interim Rule on Attestations by Facilities Temporarily Employing H-1C Nurses Under the Nursing Relief for Disadvantaged Areas Act of 1999
Dear Sir/Madam:
The Supplementary Information section of the DOL interim H-1C regulations issued pursuant to the Nursing Relief for Disadvantaged Areas Act of 1999 (NRDAA), Public Law 106-95, 113 Stat. 1312 (November 12, 1999) on August 21, 2000 states that
Congress modeled this legislation after the H-1A registered nurse temporary visa program...created by the Immigration Nursing Relief Act of 1989 (INRA)...
It is with this in mind that we offer the following comments:
1. DOL's Proper Role Is To Accept Attestations, Not To Approve or Deny Them
NRDAA, like INRA, permits facilities to petition for H-1C nurses where "an unexpired attestation is on file and in effect". The law does not authorize DOL to adjudicate attestations. Similarly, INRA contained no limits on the filing of attestations, and to the extent that prior governmental examination of any kind was contemplated, attestation was thought of as a "streamlined process" without "lengthy review of documentation." See H.R. Rept. No. 101-238 (October 16, 1989).
When the DOL first issued regulations under INRA granting itself the power to approve or deny attestations, various commentators including Congressman Bruce Morrison, the author of the legislation, and Senator Edward Kennedy submitted strongly-worded comments to DOL explaining that INRA merely authorized the department to accept attestations for filing, not to rule on their validity. In response to these comments, DOL reduced but did not eliminate its self-granted authority to accept or reject attestations. The DOL interim regulations provided that only in certain cases involving either the "substantial disruption" or the "timely and significant steps" requirement, DOL could accept or reject an attestation. It further provided that "any interested party" could appeal DOL's decision to the Board of Alien Labor Certification Appeals.
In fact, DOL rejected attestations in great numbers. According to the Supplementary Information contained in DOL's final regulations under INRA (59 Fed.Reg. 876, January 6, 1994), the attestation rejection rate varied from 23% to 43% during the first three years of the program.
Although the Supplementary Information to the August 21, 2000 regulations refers to the new procedure as a "streamlined version" of the H-1A procedure, in reality, the interim regulations would greatly expand DOL's authority to accept or reject attestations submitted by hospitals to employ H-1C nurses.
Section 655.1130 of the interim regulations would permit DOL "to determine whether or not to certify an Attestation" based upon the following criteria: All attestations would be scrutinized to determine whether they are "complete" and whether they contain any "obvious inaccuracies".
More troubling is that DOL reserves the right to "conduct a substantive review" of attestations "in the following limited circumstances": (1) whether a hospital is a "qualifying facility"; (2) when a facility indicates that it is taking "timely and significant steps" to recruit and retain U.S. nurses other than those specifically enumerated in the statute; or (3) where a facility asserts that taking a second "timely and significant step" is unreasonable.
Referring to these circumstances as "limited" is misleading. Since whether a hospital qualifies as a "facility" as an issue present in each attestation, in practice, the regulations would require DOL to conduct a substantive review of every attestation submitted.
All of this conflicts with the original intent of the authors of the attestation process that DOL simply acts as a repository for filed attestations, and that any discrepancies between the attestations and the practices of the facility be examined by DOL only when a complaint is filed.
The regulations should be amended to conform with the intent of the law.
2. DOL May Not Initiate An Investigation Of A Hospital In The Absence Of A Complaint
NRDAA provides, in language similar to that of INRA, that
The Secretary of Labor shall establish a process, including reasonable time limits, for the receipt, investigation, and disposition of complaints respecting a facility's failure to meet conditions attested to or a facility's misrepresentation of a material fact in an attestation. Complaints may be filed by any aggrieved person or organization...
Yet, section 655.1200 of the interim regulations attempts to substantially expand DOL's authority beyond that which is provided by the law by stating:
The regulation provides that the Administrator shall conduct investigations as may be appropriate, either pursuant to a complaint or otherwise. (Emphasis added.)
This language would allow DOL to initiate investigations in the absence of a complaint in violation of the clear language of the law.
Furthermore, section 655.1102 of the interim regulations defines "aggrieved party" to include not only workers, bargaining representatives and the hospital's competitors, but also:
A government agency which has a program that is impacted by the facility's alleged misrepresentation of material fact(s) or non-compliance with the attestation.
This definition is the exception which swallows the rule that investigations are to be complaint-driven and may not be originated by DOL.
The authority of DOL to initiate investigations on its own initiative, or as "an aggrieved party or organization" is not authorized by the law, and should be stricken from the regulations.
3. The Law Does Not Impose A "Prevailing Wage" Requirement Upon Hospitals
The law's second attestation element requires that the facility attest that "the employment of the alien will not adversely affect the wages and working conditions of registered nurses similarly employed". The third element requires the facility to attest that "the alien will be paid the wage for registered nurses similarly employed by the facility". This language was taken word-for-word from INRA.
During the consideration of INRA, Congress eliminated the word "prevailing wage rate" from the third attestation requirement prior to the final passage of the legislation.
Nevertheless, the interim regulations at section 655.1112(c) insert the "prevailing wage" requirement into the second attestation element:
Wages. To meet the requirement of no adverse effect on wages, the facility must attest that it will pay each nurse employed by the facility at least the prevailing wage for the occupation in the geographic area. (Emphasis added.)
The 1991 interim DOL regulations under INRA contained the same language. This, despite the fact that Senator Orrin Hatch, then the ranking minority member of the Senate Committee on Labor and Human Resources commented that this interpretation was specifically considered and rejected by Congress. (Letter from Senator Orrin G. Hatch to the Assistant Secretary for Employment and Training, Department of Labor, August 6, 1990.)
Not only does the insertion of the "prevailing wage" language in the second attestation element in the August 21, 2000 interim regulations flaunt the will of Congress, but it is poor public policy as well. The rule would effectively prevent smaller nonprofit and religious hospitals with lower wage scales than their larger for-profit competitors from participating in the H-1C program.
The reason that DOL decided to interpret the phrase "not adversely affect" in INRA as requiring that hospitals pay H-1C nurses at the "prevailing wage rate" is because this is how the phrase has been interpreted in the permanent labor certification context. DOL stated that it had to interpret duplicate language in the same statute consistently.
Should DOL find that the words "not adversely affect" in the second attestation element of NRDAA must be interpreted as paying the "prevailing wage rate" in order to be consistent with the language of the permanent alien certification requirement, the Department should also define the term "prevailing wage rate" consistently in both contexts.
In reference to the permanent alien certification requirement, DOL in its "Technical Assistance Guide" provides that
Since it may not be possible to determine an exact prevailing wage, the employer's wage offer will be accepted if it is within 5 percent of the average rate determined by the local office.
The DOL's interim H-1C regulations are silent regarding the five percent rule. However, DOL refused to apply the five percent rule to health care providers under INRA. (Letter from Flora T. Richardson, Chief, DOL Division of Foreign Labor Certifications, dated December 8, 1993.)
NRDAA does not specify how a facility determines the prevailing wage rate. However, other sections of the Immigration and Nationality Act regarding the petitioning of temporary workers allow employers a broad range of options. For example, since the early 1990's, DOL regulations have provided that, in the absence of a collective bargaining agreement or a wage which is determined under federal law, employers of H-1B workers may choose between any of the following methods in obtaining prevailing wage information: (1) Determination by State Employment Service Agency (SESA); (2) An independent authoritative source such as a published wage survey; or (3) Another legitimate source of wage data.
Unfortunately, the DOL's interim H-1C regulations, in section 655.1112(c)(2) foreclose these options for hospitals. The regulations state that
State employment security determination: In the absence of collectively bargained wage rates, the facility may not independently determine the prevailing wage. The State employment security agency (SESA) shall determine the prevailing wage for similarly employed nurses in the geographic area in accordance with administrative guidelines or regulations issued by ETA...
This same rigid approach proved unworkable in the INRA program. Although INRA was enacted in 1989, the State of California did not complete its first wage survey for H-1A nurses until 1994, one year before the law expired. Since registered nurses have been eligible for blanket labor certification for many years, SESAs generally lack wage surveys for nurses. Unless the interim regulations are modified to allow alternate sources of wage data, this may result in long delays in eligible hospitals being able to submit attestations because they cannot obtain SESA wage determinations for nurses.
4. The Notice Requirements In The Regulations Go Beyond What The Law Requires
Among the differences between NRDAA and INRA is the requirement in the new law that:
A copy of the attestation shall be provided, within 30 days of the date of filing, to registered nurses employed at the facility on the date of filing.
Section 655.1116(d) of the interim regulations provides, in pertinent part, that:
In addition to notifying the bargaining representative or posting notice..., the facility must provide a copy of the Attestation, within 30 days of the date of filing, to every registered nurse employed at the facility. This requirement may be satisfied by electronic means if an individual e-mail message, with the Attestation as an attachment, is sent to every RN at the facility. This notification includes not only the RNs employed by the facility, but also includes any RN who is providing service at the facility as an employee of another entity, such as a nursing contractor. (Emphasis added.)
Although the regulations are unclear on this point, AILA assumes that each nurse must be provided only with a copy of the attestation form (ETA-9081), and that nurses as well as other interested parties may inspect the supporting documentation available in the facility's public access file.
While nurses employed by the facility may have an interest in receiving a copy of the attestation, contract nurses not employed by the facility clearly do not. The elements of the attestation are not applicable to contract nurses. They are not included in the wage and working conditions elements since they are not "employed by the facility". (Emphasis added.) They are not included in the timely and significant steps element nor in any of the other requirements.
Furthermore, as a practical matter, 30 days after the attestation is filed, it may be difficult or even impossible to locate every contract nurse who worked for a few days or weeks at the hospital, and who happened to work for a contractor at the hospital on the date that the attestation was filed.
Imposing such an onerous requirement on the hospital is not required by law, and does not benefit a contracting nurse in any way.
5. The Regulations Should Protect Facilities Against Those Who File Frivolous Complaints
As with the INRA regulations, the interim H-1C regulations make it exceedingly simple for a worker, bargaining representative, competitor or governmental agency to file a complaint against a hospital or to challenge the approval of an attestation by DOL. The person or organization making the complaint may do so in writing or verbally. They may elect to have their identities kept confidential by DOL.
They may have real grievances against the hospital. These grievances may or may not constitute violations of the hospital's attestation. Some of the alleged violations may be frivolous or made for malicious reasons. An unscrupulous competitor could challenge the approval of a hospital's attestation by the DOL simply to keep the hospital from utilizing all or part of the quota of H-1C nurses available to hospitals in a particular state during the fiscal year. An anti-immigrant organization could file multiple complaints simply to keep hospitals from employing foreign-born H-1C workers.
Yet, despite the potential for abuse, neither the INRA nor the NRDAA interim regulations provide any protection against those who file complaints for reasons which are either frivolous or malicious. Indeed, under the regulations, any vague accusation would result in a full investigation that uses hospitals' resources on frivolous or abusive complaints. Because it is so easy to abuse the system, and there are no penalties for frivolous or malicious complaints, the DOL regulations provide a golden opportunity for unscrupulous individuals and organizations to "shake down" hospitals for money. At a minimum, copies of all complaints should be provided to the hospital, and complaining parties should be required to state with specificity how they believe the hospital has failed to comply with the attestations. In this way, complainants would at least be required to articulate a basis for the complaint, and the worst abuses of the process would be discouraged.
6. The enforcement provisions of the interim regulations are vague and overbroad, deny hospitals due process of law, and violate generally-accepted concepts of fundamental fairness.
The interim regulations at section 655.1200 describe the enforcement authority of the Administrator of DOL's Wage and Hour Division with respect to a facility's attestation. DOL is provided with sweeping authority to conduct surprise raids of hospitals, and inspect records without prior notice. The regulations provide that any "interference" with DOL's inspection of records may subject the hospital to criminal penalties.
Such a regulation invites abuse and intimidation. Any reasonable objection to a surprise raid or a search of the hospital's files allows a DOL investigator to threaten hospital administrators with summary arrest. Attorneys who lawfully object to what they consider to be "fishing expeditions" into a hospital's records may be subject to arrest.
All hospitals have confidential information which they wish to shield from competitors. Since all evidence seized by DOL may become public at a later hearing, hospitals have an interest in limiting the information which they provide to DOL to that which is relevant to their attestation and H-1C petitions.
The regulation should contain a provision granting a hospital reasonable notice of a DOL inspection. The notice should specify what documents are sought. Hospitals should not be subject to civil or criminal penalties for requesting DOL to produce a search warrant or a subpoena.
It is important to remember that the overwhelming majority of hospitals are law-abiding. During the first three years of INRA, DOL received over 1,000 attestations per year. Yet, from 1991 to 1994, only 12 complaints were filed.
7. A Few Suggestions To Help Make The Law Work More Effectively
Because of the length of the interim regulations, and brevity of the comment period, AILA cannot comment on each and every provision of the regulations. However, what follows are some brief suggestions regarding what DOL may do to assist qualifying hospitals in filing attestations:
A. List the Health Professional Shortage Areas (HPSAs) as of March 31, 1997 on DOL's web site for easy reference. (One member of AILA posted a listing of these HPSAs on his web site as soon as NRDAA was signed into law in November 1999.)
B. Post the ETA-9081 attestation form on the DOL web site for easy downloading. The INS, the IRS and several other federal agencies post downloadable forms on their web sites.
C. Substantially lessen the amount of documentation which must accompany an attestation, must be available in the facility's public access file, and the items (including approvals of H-1C petitions by INS) which must be mailed to DOL. Representative Bruce Morrison, the author of INRA, commented that the documentation requirements contained in DOL's proposed H-1A regulations were a "nightmare" and that the documentation should not have to be more extensive than that for an alien labor certification. Nevertheless, the amount of paperwork required for each facility is still a nightmare, and DOL's estimates of how long it will take a hospital to comply with each regulatory element are unreasonably brief. Preparing and documenting an attestation for a hospital under INRA often took 20-40 hours.
D. Section 655.1215(b)(2) of the interim regulations gives a party wishing to appeal a DOL determination on a complaint an unreasonably short time to submit a request for an ALJ hearing. The appeal must be "received" by the Chief Administrative Law Judge within 10 days of the DOL determination.
This short period does not take into account the time an unrepresented person or organization who files a complaint needs to consult with legal counsel. Similarly, it ignores the time that it takes for the determination to reach a hospital, to reach the hospital administrator, to consult with the hospital's attorney, to prepare an appeal and for the appeal to reach the Chief ALJ by mail. A more appropriate time period would be at least 30 days.
Submitted by,
AMERICAN IMMIGRATION LAWYERS ASSOCIATION
Carl Shusterman, Chair
AILA Committee on Health Care Professionals
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