Labor Certification Process for Temporary Employment in the Commonwealth of the Northern Mariana Islands (CW-1 Workers), 12380-12448 [2019-05937]

Download as PDF 12380 Federal Register / Vol. 84, No. 62 / Monday, April 1, 2019 / Rules and Regulations 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) Employment and Training Administration, Department of Labor. ACTION: Interim final rule; request for comments. AGENCY: 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: SUMMARY: VerDate Sep<11>2014 20:01 Mar 29, 2019 Jkt 247001 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 PO 00000 Frm 00002 Fmt 4701 Sfmt 4700 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 E:\FR\FM\01APR2.SGM 01APR2 Federal Register / Vol. 84, No. 62 / Monday, April 1, 2019 / Rules and Regulations 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 VerDate Sep<11>2014 20:01 Mar 29, 2019 Jkt 247001 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 PO 00000 Frm 00003 Fmt 4701 Sfmt 4700 12381 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). 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 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). E:\FR\FM\01APR2.SGM 01APR2 12382 Federal Register / Vol. 84, No. 62 / Monday, April 1, 2019 / Rules and Regulations 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. VerDate Sep<11>2014 20:01 Mar 29, 2019 Jkt 247001 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. 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 CommonwealthOnly 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 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-january2017.pdf. PO 00000 Frm 00004 Fmt 4701 Sfmt 4700 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-andcomment 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). 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. 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. E:\FR\FM\01APR2.SGM 01APR2 Federal Register / Vol. 84, No. 62 / Monday, April 1, 2019 / Rules and Regulations 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 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-18373T. 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. VerDate Sep<11>2014 20:01 Mar 29, 2019 Jkt 247001 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 lowskilled workers. 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 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 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. PO 00000 Frm 00005 Fmt 4701 Sfmt 4700 12383 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 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 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’’). 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.’’). E:\FR\FM\01APR2.SGM 01APR2 12384 Federal Register / Vol. 84, No. 62 / Monday, April 1, 2019 / Rules and Regulations 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 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 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-5-1731-wage-survey/. VerDate Sep<11>2014 20:01 Mar 29, 2019 Jkt 247001 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 Commonwealthprovided 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. PO 00000 Frm 00006 Fmt 4701 Sfmt 4700 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. E:\FR\FM\01APR2.SGM 01APR2 Federal Register / Vol. 84, No. 62 / Monday, April 1, 2019 / Rules and Regulations 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 § 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 § 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 §§ 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 VerDate Sep<11>2014 20:01 Mar 29, 2019 Jkt 247001 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 § 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 § 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. PO 00000 Frm 00007 Fmt 4701 Sfmt 4700 12385 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 E:\FR\FM\01APR2.SGM 01APR2 12386 Federal Register / Vol. 84, No. 62 / Monday, April 1, 2019 / Rules and Regulations 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 dayto-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 VerDate Sep<11>2014 20:01 Mar 29, 2019 Jkt 247001 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 § 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. PO 00000 Frm 00008 Fmt 4701 Sfmt 4700 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. E:\FR\FM\01APR2.SGM 01APR2 Federal Register / Vol. 84, No. 62 / Monday, April 1, 2019 / Rules and Regulations 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. VerDate Sep<11>2014 20:01 Mar 29, 2019 Jkt 247001 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: Æ Substantial continuity of the same business operations; Æ Use of the same facilities; Æ Continuity of the work force; Æ Similarity of jobs and working conditions; Æ Similarity of supervisory personnel; Æ Whether the former management or owner retains a direct or indirect interest in the new enterprise; Æ Similarity in machinery, equipment, and production methods; Æ Similarity of products and services; and Æ 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. PO 00000 Frm 00009 Fmt 4701 Sfmt 4700 12387 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 E:\FR\FM\01APR2.SGM 01APR2 12388 Federal Register / Vol. 84, No. 62 / Monday, April 1, 2019 / Rules and Regulations 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 § 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 VerDate Sep<11>2014 20:01 Mar 29, 2019 Jkt 247001 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), § 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 reapply 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 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, PO 00000 Frm 00010 Fmt 4701 Sfmt 4700 As required by the Workforce Act, § 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 § 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 § 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 employers do not receive a PWD from DOL’s NPWC for the H–2A program. 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. E:\FR\FM\01APR2.SGM 01APR2 Federal Register / Vol. 84, No. 62 / Monday, April 1, 2019 / Rules and Regulations 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. Wages for the OES survey are straighttime, 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. 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 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-ofestablishments/. 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. VerDate Sep<11>2014 20:01 Mar 29, 2019 Jkt 247001 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 23 The BLS practice of survey expansion is generally described in GAL 2–98, at p. 4. PO 00000 Frm 00011 Fmt 4701 Sfmt 4700 12389 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. 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 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 24 See OFLC Frequently Asked Questions and Answers, https://www.foreignlaborcert.doleta.gov/ faqsanswers.cfm. E:\FR\FM\01APR2.SGM 01APR2 12390 Federal Register / Vol. 84, No. 62 / Monday, April 1, 2019 / Rules and Regulations with paragraph (c)(1)(ii) of § 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 25 The occupational classification for the survey is based on the job duties performed and need not be identical to an SOC. VerDate Sep<11>2014 20:01 Mar 29, 2019 Jkt 247001 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. 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. 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 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. PO 00000 Frm 00012 Fmt 4701 Sfmt 4700 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, § 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 § 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 § 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 § 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 § 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 E:\FR\FM\01APR2.SGM 01APR2 Federal Register / Vol. 84, No. 62 / Monday, April 1, 2019 / Rules and Regulations 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 § 655.461 as explained further in the preamble to that section. 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. C. CW–1 Application for Temporary Employment Certification Filing Procedures b. Paragraph (c), Location and Methods of Filing 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 VerDate Sep<11>2014 20:01 Mar 29, 2019 Jkt 247001 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. 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. PO 00000 Frm 00013 Fmt 4701 Sfmt 4700 12391 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. Efiling 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 endto-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 systemgenerated 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 E:\FR\FM\01APR2.SGM 01APR2 12392 Federal Register / Vol. 84, No. 62 / Monday, April 1, 2019 / Rules and Regulations 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 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, efiling, 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 27 20 CFR part 655, subpart A; 20 CFR part 655, subpart B. VerDate Sep<11>2014 20:01 Mar 29, 2019 Jkt 247001 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. 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 efiling 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 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). PO 00000 Frm 00014 Fmt 4701 Sfmt 4700 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 employerclient, 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 § 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. 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 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. E:\FR\FM\01APR2.SGM 01APR2 Federal Register / Vol. 84, No. 62 / Monday, April 1, 2019 / Rules and Regulations 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 VerDate Sep<11>2014 20:01 Mar 29, 2019 Jkt 247001 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. 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 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). 32 20 CFR part 655, subparts A and B. PO 00000 Frm 00015 Fmt 4701 Sfmt 4700 12393 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. 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 E:\FR\FM\01APR2.SGM 01APR2 12394 Federal Register / Vol. 84, No. 62 / Monday, April 1, 2019 / Rules and Regulations 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 employermember 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 § 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 § 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 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). VerDate Sep<11>2014 20:01 Mar 29, 2019 Jkt 247001 to be performed is temporary or permanent in nature. 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 § 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 34 The fiscal year in which the annual statutory numerical limits apply spans October 1 through September 30. PO 00000 Frm 00016 Fmt 4701 Sfmt 4700 as the statutory visa cap in a fiscal year is reached. 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 E:\FR\FM\01APR2.SGM 01APR2 Federal Register / Vol. 84, No. 62 / Monday, April 1, 2019 / Rules and Regulations 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. 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 § 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 employerclients. 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 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. VerDate Sep<11>2014 20:01 Mar 29, 2019 Jkt 247001 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 § 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 § 655.441. In order to fully inform prospective applicants of the job opportunity and avoid potential confusion inherent in a job opportunity involving two PO 00000 Frm 00017 Fmt 4701 Sfmt 4700 12395 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 employerclients’ 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 § 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 manmade catastrophic events (such as a E:\FR\FM\01APR2.SGM 01APR2 12396 Federal Register / Vol. 84, No. 62 / Monday, April 1, 2019 / Rules and Regulations 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 § 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 § 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. VerDate Sep<11>2014 20:01 Mar 29, 2019 Jkt 247001 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 § 655.402, workers engaged in corresponding employment are entitled to the same protections and PO 00000 Frm 00018 Fmt 4701 Sfmt 4700 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 piecerate 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 nonCW–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 E:\FR\FM\01APR2.SGM 01APR2 Federal Register / Vol. 84, No. 62 / Monday, April 1, 2019 / Rules and Regulations 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 piecerate 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 VerDate Sep<11>2014 20:01 Mar 29, 2019 Jkt 247001 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; ‘‘kickbacks’’ 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. PO 00000 Frm 00019 Fmt 4701 Sfmt 4700 12397 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 fulltime 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 parttime 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. 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). E:\FR\FM\01APR2.SGM 01APR2 12398 Federal Register / Vol. 84, No. 62 / Monday, April 1, 2019 / Rules and Regulations 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. 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. 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 37 20 CFR part 655, subpart A; 20 CFR part 655, subpart B. 38 20 CFR part 655, subpart A; 20 CFR part 655, subpart B. VerDate Sep<11>2014 20:01 Mar 29, 2019 Jkt 247001 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 threefourths 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 PO 00000 Frm 00020 Fmt 4701 Sfmt 4700 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 threefourths 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 fulltime workers during the entire certification period. Therefore, it is important to the integrity of the program, which is a capped visa E:\FR\FM\01APR2.SGM 01APR2 Federal Register / Vol. 84, No. 62 / Monday, April 1, 2019 / Rules and Regulations 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 § 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 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 VerDate Sep<11>2014 20:01 Mar 29, 2019 Jkt 247001 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. 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 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. PO 00000 Frm 00021 Fmt 4701 Sfmt 4700 12399 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 § 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 E:\FR\FM\01APR2.SGM 01APR2 12400 Federal Register / Vol. 84, No. 62 / Monday, April 1, 2019 / Rules and Regulations 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 § 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 VerDate Sep<11>2014 20:01 Mar 29, 2019 Jkt 247001 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); MoranteNavarro 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); DeLeonGranados 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. PO 00000 Frm 00022 Fmt 4701 Sfmt 4700 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 § 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 hometo-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 E:\FR\FM\01APR2.SGM 01APR2 Federal Register / Vol. 84, No. 62 / Monday, April 1, 2019 / Rules and Regulations 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 VerDate Sep<11>2014 20:01 Mar 29, 2019 Jkt 247001 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 PO 00000 Frm 00023 Fmt 4701 Sfmt 4700 12401 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, inkind 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 Governmentrequired 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 E:\FR\FM\01APR2.SGM 01APR2 12402 Federal Register / Vol. 84, No. 62 / Monday, April 1, 2019 / Rules and Regulations 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 § 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 § 655.456. VerDate Sep<11>2014 20:01 Mar 29, 2019 Jkt 247001 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 §§ 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 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 41 This provision is consistent with the H–2B provisions at 20 CFR 655.20(u). PO 00000 Frm 00024 Fmt 4701 Sfmt 4700 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 § 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 E:\FR\FM\01APR2.SGM 01APR2 Federal Register / Vol. 84, No. 62 / Monday, April 1, 2019 / Rules and Regulations contract, as previously discussed under § 655.423(f).42 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 42 This provision is consistent with H–2B program requirements at 20 CFR 655.20(y). VerDate Sep<11>2014 20:01 Mar 29, 2019 Jkt 247001 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 § 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 § 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 PO 00000 Frm 00025 Fmt 4701 Sfmt 4700 12403 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 § 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 § 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 E:\FR\FM\01APR2.SGM 01APR2 12404 Federal Register / Vol. 84, No. 62 / Monday, April 1, 2019 / Rules and Regulations 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 § 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 § 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 § 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 § 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 VerDate Sep<11>2014 20:01 Mar 29, 2019 Jkt 247001 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 § 655.442; contacting its former U.S. employees employed during the previous year and soliciting their return to the jobs, as further explained under § 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 § 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 § 655.445. To ensure employers initiate recruitment in a timely manner, the NOA will require all employerconducted 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 § 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 PO 00000 Frm 00026 Fmt 4701 Sfmt 4700 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. 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 § 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 USCISadministered CW–1 visa cap. Therefore, the Department will not approve cap43 The H–2B provisions may be found at 20 CFR 655.35. The H–2A provisions may be found at 20 CFR 655.145. E:\FR\FM\01APR2.SGM 01APR2 Federal Register / Vol. 84, No. 62 / Monday, April 1, 2019 / Rules and Regulations 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, EmployerConducted 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 VerDate Sep<11>2014 20:01 Mar 29, 2019 Jkt 247001 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 §§ 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 § 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 PO 00000 Frm 00027 Fmt 4701 Sfmt 4700 12405 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 § 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 § 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 § 655.423, the Department is striking an appropriate balance between the E:\FR\FM\01APR2.SGM 01APR2 12406 Federal Register / Vol. 84, No. 62 / Monday, April 1, 2019 / Rules and Regulations 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 $ll 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 VerDate Sep<11>2014 20:01 Mar 29, 2019 Jkt 247001 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 § 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 § 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. 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 44 20 CFR 655.41; 20 CFR 655.18; 20 CFR 655.151; 20 CFR 655.122. 45 20 CFR part 655, subpart A; 20 CFR part 655, subpart B. PO 00000 Frm 00028 Fmt 4701 Sfmt 4700 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. 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 E:\FR\FM\01APR2.SGM 01APR2 Federal Register / Vol. 84, No. 62 / Monday, April 1, 2019 / Rules and Regulations 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. 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 § 655.456. 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; 6. Section 655.445, Additional Employer-Conducted Requirement Where the CO determines that the employer-conducted recruitment described in §§ 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 VerDate Sep<11>2014 20:01 Mar 29, 2019 Jkt 247001 PO 00000 Frm 00029 Fmt 4701 Sfmt 4700 12407 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 § 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 § 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. E:\FR\FM\01APR2.SGM 01APR2 12408 Federal Register / Vol. 84, No. 62 / Monday, April 1, 2019 / Rules and Regulations Except in circumstances where an employer may be required to do assisted recruitment under § 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 § 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 VerDate Sep<11>2014 20:01 Mar 29, 2019 Jkt 247001 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 PO 00000 Frm 00030 Fmt 4701 Sfmt 4700 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 § 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 § 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-thanrequested period of employment or a lower-than-requested number of CW–1 E:\FR\FM\01APR2.SGM 01APR2 Federal Register / Vol. 84, No. 62 / Monday, April 1, 2019 / Rules and Regulations 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 § 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 § 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 VerDate Sep<11>2014 20:01 Mar 29, 2019 Jkt 247001 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. PO 00000 Frm 00031 Fmt 4701 Sfmt 4700 12409 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 § 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 § 655.461. Where the CO approves the employer’s request for an extension, the written notification E:\FR\FM\01APR2.SGM 01APR2 12410 Federal Register / Vol. 84, No. 62 / Monday, April 1, 2019 / Rules and Regulations 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 § 655.411; denial of a modified CW–1 Application for Temporary Employment Certification under § 655.432; denial of TLC under § 655.453; issuance of a partial certification under § 655.454; denial of a request for an extension under § 655.460; imposition of assisted recruitment under § 655.471. In addition, an employer may request administrative review of a revocation of an approved TLC by the OFLC Administrator under § 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 VerDate Sep<11>2014 20:01 Mar 29, 2019 Jkt 247001 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 decisionmaking 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 PO 00000 Frm 00032 Fmt 4701 Sfmt 4700 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 § 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. E:\FR\FM\01APR2.SGM 01APR2 Federal Register / Vol. 84, No. 62 / Monday, April 1, 2019 / Rules and Regulations 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 §§ 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 § 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 VerDate Sep<11>2014 20:01 Mar 29, 2019 Jkt 247001 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 § 655.461. As set forth in paragraph (c), the assisted recruitment process will be in PO 00000 Frm 00033 Fmt 4701 Sfmt 4700 12411 addition to any recruitment required of the employer under §§ 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 § 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 § 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 § 655.473(d) and (e); or (3) when the OFLC Administrator determines that the employer is impeding the Department’s audit examination authority under § 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 E:\FR\FM\01APR2.SGM 01APR2 12412 Federal Register / Vol. 84, No. 62 / Monday, April 1, 2019 / Rules and Regulations 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 § 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 § 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 § 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 VerDate Sep<11>2014 20:01 Mar 29, 2019 Jkt 247001 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 PO 00000 Frm 00034 Fmt 4701 Sfmt 4700 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 E:\FR\FM\01APR2.SGM 01APR2 Federal Register / Vol. 84, No. 62 / Monday, April 1, 2019 / Rules and Regulations 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. 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. 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 46 20 CFR 655.73; 20 CFR 655.182; and 20 CFR 656.31(f). 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). VerDate Sep<11>2014 20:01 Mar 29, 2019 Jkt 247001 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 § 655.431, or the assisted recruitment process, as set forth in § 655.471; impeding the audit process, as set forth in § 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 § 655.423(n) or (o); a violation of any of the provisions listed in § 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 PO 00000 Frm 00035 Fmt 4701 Sfmt 4700 12413 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 30day 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 E:\FR\FM\01APR2.SGM 01APR2 12414 Federal Register / Vol. 84, No. 62 / Monday, April 1, 2019 / Rules and Regulations 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 VerDate Sep<11>2014 20:01 Mar 29, 2019 Jkt 247001 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 PO 00000 Frm 00036 Fmt 4701 Sfmt 4700 determined that this IFR is significant regulatory action under section 3(f) of E.O. 12866. 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). 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-bySubject 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 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. E:\FR\FM\01APR2.SGM 01APR2 Federal Register / Vol. 84, No. 62 / Monday, April 1, 2019 / Rules and Regulations 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 12415 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 First Year Total ................................................................................................ Annualized, 3% discount rate, 11.25 years ..................................................... Annualized, 7% discount rate, 11.25 years ..................................................... Total, 3% discount rate, 11.25 years .............................................................. Total, 7% discount rate, 11.25 years .............................................................. 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 VerDate Sep<11>2014 20:01 Mar 29, 2019 Jkt 247001 $4,359,067 3,086,620 3,190,028 29,106,568 24,284,121 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 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/201810/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/902consultations-report-january-2017.pdf. PO 00000 Frm 00037 Fmt 4701 Sfmt 4700 Total transfer payments $42,286,653 34,794,484 35,522,023 328,109,108 270,411,736 Transfer payments to CW–1 workers $28,877,022 21,387,623 22.118.381 201,683,522 168,368,772 Transfer payments to U.S. workers $13,409,631 12,406,860 13,404,642 126,425,586 102,042,965 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 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 employerprovided 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. 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 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. 56 Id. 57 Id. E:\FR\FM\01APR2.SGM 01APR2 12416 Federal Register / Vol. 84, No. 62 / Monday, April 1, 2019 / Rules and Regulations 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). 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). 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] Fiscal year 2019 2020 2021 2022 2023 2024 2025 2026 2027 2028 2029 2030 Projected CW–1 employers Projected CW–1 applications Projected CW–1 workers (equivalent to numerical cap) 2,404 2,315 2,222 2,130 2,037 1,852 1,667 1,481 1,296 1,111 926 185 8,636 8,303 7,971 7,639 7,307 6,643 5,979 5,314 4,650 3,986 3,321 664 13,000 12,500 12,000 11,500 11,000 10,000 9,000 8,000 7,000 6,000 5,000 1,000 ................................................................................................................................. ................................................................................................................................. ................................................................................................................................. ................................................................................................................................. ................................................................................................................................. ................................................................................................................................. ................................................................................................................................. ................................................................................................................................. ................................................................................................................................. ................................................................................................................................. ................................................................................................................................. Q1 ........................................................................................................................... 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. 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. VerDate Sep<11>2014 20:01 Mar 29, 2019 Jkt 247001 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 59 Source: U.S. Department of Homeland Security, U.S. Citizenship and Immigration Services, unpublished table. 60 Source: U.S. Department of Homeland Security, U.S. Citizenship and Immigration Services, unpublished table. 61 CNMI Department of Commerce, Statistical Yearbook 2017, Table 5.24 ‘‘Average Hourly Wages PO 00000 Frm 00038 Fmt 4701 Sfmt 4700 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. 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 by Occupation and Citizenship, CNMI: 2016,’’ http://ver1.cnmicommerce.com/sy-2017-table-5-1731-wage-survey/. 62 Source: U.S. Department of Homeland Security, U.S. Citizenship and Immigration Services, unpublished table. E:\FR\FM\01APR2.SGM 01APR2 12417 Federal Register / Vol. 84, No. 62 / Monday, April 1, 2019 / Rules and Regulations 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 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 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] Position Grade level CNMI Private Sector Employees: Human Resources Manager ..................................................................... Translator .................................................................................................. Federal Government Employees: NPWC Staff .............................................................................................. NPC Staff .................................................................................................. 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. 44.02 44.02 2 2 88.04 88.04 (2) Recordkeeping Frm 00039 Fmt 4701 Sfmt 4700 a×b 12 12 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 × 1 hour × $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. PO 00000 (b) $23.49 18.73 65 Source: Office of Personnel Management, ‘‘2018 General Schedule (GS) Locality Pay Tables,’’ https://www.opm.gov/policy-data-oversight/payleave/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 Jkt 247001 (a) 1.17 1.17 63 Source: CNMI Department of Commerce, ‘‘2016 CNMI Prevailing Wage and Workforce Assessment Study,’’ http:// i2io42u7ucg3bwn5b3l0fquc.wpengine.netdnacdn.com/wp-content/uploads/2017/09/2016PWWAS-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. 20:01 Mar 29, 2019 Hourly compensation rate $20.08 $16.01 When the IFR takes effect, employers of CW–1 workers will need to familiarize themselves with the new regulations, thereby incurring a onetime 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 VerDate Sep<11>2014 Loaded wage factor N/A N/A 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, (1) Rule Familiarization Base hourly wage rate 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. 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 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. 68 Source: https://www.staples.com/staples-2drawer-vertical-file-cabinet-charcoal-letter-18-d52143/product_2806760. E:\FR\FM\01APR2.SGM 01APR2 12418 Federal Register / Vol. 84, No. 62 / Monday, April 1, 2019 / Rules and Regulations 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 × 30 pages × $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 11.25year 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 × 20 minutes × $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 11.25year 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 VerDate Sep<11>2014 20:01 Mar 29, 2019 Jkt 247001 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 × 46 minutes × $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 × 1 hour × $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 11.25year 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 PO 00000 Frm 00040 Fmt 4701 Sfmt 4700 the estimated FY 2019 cost is $10,143 (= 8,636 applications × 5 percent × 1 hour × $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 11.25year 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 × 45 minutes × $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 × 1 hour × $88.04 per hour). The annualized cost over the 11.25-year period is estimated at E:\FR\FM\01APR2.SGM 01APR2 Federal Register / Vol. 84, No. 62 / Monday, April 1, 2019 / Rules and Regulations $565,871 at a discount rate of 3 percent and $584,485 at a discount rate of 7 percent. The total cost over the 11.25year 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 × 25 percent × 30 minutes × $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 VerDate Sep<11>2014 20:01 Mar 29, 2019 Jkt 247001 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 × 55 percent × 15 minutes × $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 × 35 percent × 15 minutes × $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 PO 00000 Frm 00041 Fmt 4701 Sfmt 4700 12419 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 × 70 percent × 20 minutes × $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 × 20 minutes × $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 E:\FR\FM\01APR2.SGM 01APR2 12420 Federal Register / Vol. 84, No. 62 / Monday, April 1, 2019 / Rules and Regulations 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 × 10 percent × 30 minutes × $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 VerDate Sep<11>2014 20:01 Mar 29, 2019 Jkt 247001 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 × 33.3 percent × 1 hour × $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 × 15 percent × 30 minutes × $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 PO 00000 Frm 00042 Fmt 4701 Sfmt 4700 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 × 1 hour × $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 × 1 hour × $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 11.25year 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 E:\FR\FM\01APR2.SGM 01APR2 Federal Register / Vol. 84, No. 62 / Monday, April 1, 2019 / Rules and Regulations 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 × 30 minutes × $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 × 35 percent × 15 minutes × $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 VerDate Sep<11>2014 20:01 Mar 29, 2019 Jkt 247001 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 × 1 hour × $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 11.25year 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 × 1 hour × $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 11.25year 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 PO 00000 Frm 00043 Fmt 4701 Sfmt 4700 12421 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 × 1 hour × $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 11.25year 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 × 5 minutes × $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 × 3 pages × $0.09 per page). Combining the labor and materials costs for reproducing the work contract, E:\FR\FM\01APR2.SGM 01APR2 12422 Federal Register / Vol. 84, No. 62 / Monday, April 1, 2019 / Rules and Regulations 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 × 10 minutes × $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 × 37 percent × $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 × 63 percent). Combined with 8,353 U.S. workers, the total number of workers in the CNMI who would be mailed a work VerDate Sep<11>2014 20:01 Mar 29, 2019 Jkt 247001 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 × $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 × 5 percent × 10 minutes × $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 PO 00000 Frm 00044 Fmt 4701 Sfmt 4700 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 × 5 percent × 30 minutes × $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 × 5 percent × 1 hour × $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. E:\FR\FM\01APR2.SGM 01APR2 Federal Register / Vol. 84, No. 62 / Monday, April 1, 2019 / Rules and Regulations (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 × 10 percent × 10 minutes × $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. 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 × 0.5 percent × 1 hour × $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 11.25year period is estimated at $7,119 at a discount rate of 3 percent and $5,936 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 This section discusses the quantifiable transfer payments related to transportation and subsistence costs, as well as the impact on the wages of CW– b. Transfer Payments 12423 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 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] Country FY 2016 Proportion (percent) FY 2017 Proportion (percent) FY 2018 Proportion (percent) Average proportion (percent) Normalized proportion (percent) Philippines ........................ China ................................ South Korea ..................... Bangladesh ...................... Japan ............................... Taiwan .............................. Malaysia ........................... Vietnam ............................ Thailand ........................... India ................................. 7,086 4,844 433 473 142 35 26 4 56 14 53.28 36.42 3.26 3.56 1.07 0.26 0.20 0.03 0.42 0.11 6,497 5,298 380 352 200 240 200 116 58 24 47.90 39.06 2.80 2.60 1.47 1.77 1.47 0.86 0.43 0.18 6,043 1,703 374 210 92 276 202 95 54 44 65.02 18.32 4.02 2.26 0.99 2.97 2.17 1.02 0.58 0.47 55.40 31.27 3.36 2.80 1.18 1.67 1.28 0.64 0.48 0.25 56.34 31.80 3.42 2.85 1.20 1.70 1.30 0.65 0.48 0.26 Top 10 Total ............. 13,113 98.60 13,365 98.54 9,093 97.84 98.33 100.00 69 For the purpose of this analysis, CW–1 workers are considered temporary residents of the United States. VerDate Sep<11>2014 20:01 Mar 29, 2019 Jkt 247001 PO 00000 Frm 00045 Fmt 4701 Sfmt 4700 E:\FR\FM\01APR2.SGM 01APR2 12424 Federal Register / Vol. 84, No. 62 / Monday, April 1, 2019 / Rules and Regulations EXHIBIT 4—AVERAGE PROPORTION OF WORKERS BY COUNTRY OF ORIGIN—Continued [FY 2016–2018] Country FY 2016 Total .......................... Proportion (percent) 13,299 100.00 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 Proportion (percent) FY 2017 13,563 100.00 FY 2018 9,294 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 oneway cost from each country of origin by adding these four components and then estimating a weighted average total oneway travel cost by multiplying the total Proportion (percent) 100.00 Average proportion (percent) Normalized proportion (percent) .................... .................... 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 dollars) Item Philippines One-way travel—within Manila ........................................................................................................................................................ One-way travel—Quezon City to Manila ......................................................................................................................................... One-way travel—Caloocan to Manila .............................................................................................................................................. $0.00 1.00 1.00 Average—Home city to Manila ................................................................................................................................................. Lodging Cost—Manila ..................................................................................................................................................................... Meals ............................................................................................................................................................................................... One-way travel—Manila to Saipan .................................................................................................................................................. 0.67 1.47 12.26 397.00 Total one-way travel ................................................................................................................................................................. 411.40 China One-way travel—within Beijing ........................................................................................................................................................ One-way travel—Chongqing to Beijing ........................................................................................................................................... One-way travel—Shanghai to Beijing .............................................................................................................................................. 0.00 77.00 87.50 Average—Home city to Beijing ................................................................................................................................................ Lodging cost—Beijing ...................................................................................................................................................................... Meals ............................................................................................................................................................................................... One-way travel—Beijing to Saipan .................................................................................................................................................. 54.83 8.74 12.26 410.20 Total one-way travel ................................................................................................................................................................. 486.03 South Korea One-way travel—within Seoul ......................................................................................................................................................... One-way travel—Busan to Seoul .................................................................................................................................................... One-way travel—Incheon to Seoul .................................................................................................................................................. 0.00 27.00 1.50 Average—Home city to Seoul .................................................................................................................................................. Lodging cost—Seoul ........................................................................................................................................................................ Meals ............................................................................................................................................................................................... One-way travel—Seoul to Saipan ................................................................................................................................................... 9.50 9.01 12.26 206.00 Total one-way travel ................................................................................................................................................................. 236.77 Bangladesh One-way travel—within Dhaka ........................................................................................................................................................ One-way travel—Sylhet to Dhaka ................................................................................................................................................... One-way travel—Chittagong to Dhaka ............................................................................................................................................ 0.00 6.00 12.00 Average—Home city to Dhaka ................................................................................................................................................. Lodging cost—Dhaka ...................................................................................................................................................................... Meals ............................................................................................................................................................................................... One-way travel—Dhaka to Saipan .................................................................................................................................................. 6.00 15.00 12.26 970.00 VerDate Sep<11>2014 20:01 Mar 29, 2019 Jkt 247001 PO 00000 Frm 00046 Fmt 4701 Sfmt 4700 E:\FR\FM\01APR2.SGM 01APR2 Federal Register / Vol. 84, No. 62 / Monday, April 1, 2019 / Rules and Regulations 12425 EXHIBIT 5—ESTIMATED COST OF TRAVEL FOR CW–1 WORKERS—Continued Cost (2018 dollars) Item Total one-way travel ................................................................................................................................................................. 1,003.26 Japan One-way travel—within Tokyo ......................................................................................................................................................... One-way travel—Yokohama to Tokyo ............................................................................................................................................. One-way travel—Osaka to Tokyo ................................................................................................................................................... 0.00 5.50 60.00 Average—Home city to Tokyo ................................................................................................................................................. Lodging cost—Tokyo ....................................................................................................................................................................... Meals ............................................................................................................................................................................................... One-way travel—Tokyo to Saipan ................................................................................................................................................... 21.83 12.26 12.26 336.00 Total one-way travel ................................................................................................................................................................. 382.35 Taiwan One-way travel—New Taipei City to Taipei City ............................................................................................................................. One-way travel—Taichung to Taipei City ........................................................................................................................................ One-way travel—Kaohsiung to Taipei City ..................................................................................................................................... 1.00 6.50 21.00 Average—Home city to Taipei City .......................................................................................................................................... Lodging cost—Taipei City ................................................................................................................................................................ Meals ............................................................................................................................................................................................... One-way travel—Taipei City to Saipan ........................................................................................................................................... 9.50 .79 12.26 308.00 Total one-way travel ................................................................................................................................................................. 339.55 Malaysia One-way travel—within Kuala Lumpur ............................................................................................................................................ One-way travel—Ipoh to Kuala Lumpur .......................................................................................................................................... 0.00 5.00 One-way travel—Iskander Puteri to Kuala Lumpur ......................................................................................................................... 21.50 Average—Home city to Kuala Lumpur ..................................................................................................................................... Lodging cost—Kuala Lumpur .......................................................................................................................................................... Meals ............................................................................................................................................................................................... One-way travel—Kuala Lumpur to Saipan ...................................................................................................................................... 8.83 5.08 12.26 445.00 Total one-way travel ................................................................................................................................................................. 471.17 Vietnam One-way travel—within Hanoi ......................................................................................................................................................... One-way travel—Ho Chi Minh City to Hanoi ................................................................................................................................... One-way travel—Da Nang to Hanoi ................................................................................................................................................ 0.00 30.00 14.00 Average—Home city to Hanoi .................................................................................................................................................. Lodging cost—Hanoi ....................................................................................................................................................................... Meals ............................................................................................................................................................................................... One-way travel—Hanoi to Saipan ................................................................................................................................................... 14.67 5.08 12.26 419.00 Total one-way travel ................................................................................................................................................................. 448.63 Thailand One-way travel—within Bangkok ..................................................................................................................................................... One-way travel—Pattaya to Bangkok ............................................................................................................................................. One-way travel—Nonthaburi to Bangkok ........................................................................................................................................ 0.00 5.00 1.00 Average—Home city to Bangkok ............................................................................................................................................. Lodging cost—Bangkok ................................................................................................................................................................... Meals ............................................................................................................................................................................................... One-way travel—Bangkok to Saipan .............................................................................................................................................. 2.00 3.68 12.26 447.00 Total one-way travel ................................................................................................................................................................. 464.94 India One-way travel—within New Delhi .................................................................................................................................................. One-way travel—Mumbai to New Delhi .......................................................................................................................................... VerDate Sep<11>2014 20:01 Mar 29, 2019 Jkt 247001 PO 00000 Frm 00047 Fmt 4701 Sfmt 4700 E:\FR\FM\01APR2.SGM 01APR2 0.00 16.00 12426 Federal Register / Vol. 84, No. 62 / Monday, April 1, 2019 / Rules and Regulations EXHIBIT 5—ESTIMATED COST OF TRAVEL FOR CW–1 WORKERS—Continued Cost (2018 dollars) Item One-way travel—Bengaluru to New Delhi ....................................................................................................................................... 30.00 Average—Home city to New Delhi ........................................................................................................................................... Lodging cost—New Delhi ................................................................................................................................................................ Meals ............................................................................................................................................................................................... One-way travel—New Delhi to Saipan ............................................................................................................................................ 15.33 3.27 12.26 592.00 Total one-way travel ................................................................................................................................................................. 622.86 All One-way travel—Weighted average ................................................................................................................................................ Round-trip travel—Weighted average ............................................................................................................................................. 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 countryof-origin weighted average total roundtrip 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 × 37 percent × $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 § 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 § 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 446.27 892.54 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. EXHIBIT 6—CNMI PREVAILING HOURLY WAGE UNDER THE IFR [Example cases] CW–1 occupation title SOC code Accountant ................... Civil Engineer ............... Architect/Surveyor ........ Fisher/Hunter/Trapper .. Baseline wage a 132011 172051 173031 453011 CNMI survey wage $12.86 23.52 8.06 7.25 Guam OES wage $12.86 N/A N/A N/A $22.23 29.06 N/A N/A National OES wage × 0.71 $26.60 31.33 15.82 10.65 Assigned wage $12.86 29.06 15.82 10.65 Wage difference $0.00 5.54 7.76 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. 70 U.S. Department of Labor, Bureau of Labor Statistics, Occupational Employment Statistics program, ‘‘State Occupational Employment and VerDate Sep<11>2014 20:01 Mar 29, 2019 Jkt 247001 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 PO 00000 Frm 00048 Fmt 4701 Sfmt 4700 program, ‘‘National Occupational Employment and Wage Estimates, United States’’ (May 2017), https:// www.bls.gov/oes/current/oes_nat.htm. E:\FR\FM\01APR2.SGM 01APR2 12427 Federal Register / Vol. 84, No. 62 / Monday, April 1, 2019 / Rules and Regulations 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. EXHIBIT 7—FY 2019 CORRESPONDING U.S. WORKERS IN CW–1 OCCUPATIONS [Example cases] CW–1 occupation title Accountant ................... Civil Engineer ............... Architect/Surveyor ........ Fisher/Hunter/Trapper .. SOC code 132011 172051 173031 453011 FY 2018 CW–1 approvals Percentage of FY 2018 approvals Projected FY 2019 CW–1 workers (a) (b) (c) = 13,000 × (b) 287 10 6 19 3.09 0.11 0.06 0.20 401 14 8 27 CNMI Department of Commerce category 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 × 2,080 hours × $5.54).73 For U.S. workers, the result is an estimated increase in wages of $96,223 in FY 2019 (= 8 workers × 2,080 hours × $5.54). 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 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-5-1731-wage-survey/. 20:01 Mar 29, 2019 Jkt 247001 PO 00000 Frm 00049 Fmt 4701 Corresponding U.S. workers Total affected workers (d) (e) = (a) × (d) (c) + (e) Business and Financial Operations Architecture and Engineering ......... Architecture and Engineering ......... Farming, Fishing, and 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 VerDate Sep<11>2014 Ratio of U.S. workers to CW–1 workers Sfmt 4700 1.35 0.84 0.84 0.77 387 8 5 15 788 22 13 42 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. 73 Calculations E:\FR\FM\01APR2.SGM 01APR2 may not match due to rounding. 12428 Federal Register / Vol. 84, No. 62 / Monday, April 1, 2019 / Rules and Regulations 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 EXHIBIT 8—ESTIMATED COSTS AND TRANSFER PAYMENTS [2018 dollars] Transfer payments Fiscal year Costs 2019 ................................................................................................................. 2020 ................................................................................................................. 2021 ................................................................................................................. 2022 ................................................................................................................. 2023 ................................................................................................................. 2024 ................................................................................................................. 2025 ................................................................................................................. 2026 ................................................................................................................. 2027 ................................................................................................................. 2028 ................................................................................................................. 2029 ................................................................................................................. 2030,Q1 ........................................................................................................... Annualized, 3% discount rate, 11.25 years ..................................................... Annualized, 7% discount rate, 11.25 years ..................................................... Total, 3% discount rate, 11.25 years .............................................................. Total, 7% discount rate, 11.25 years .............................................................. 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. $4,359,067 3,930,868 3,775,905 3,620,948 3,465,984 3,156,064 2,846,144 2,535,763 2,225,842 1,915,922 1,605,547 365,405 3,086,620 3,190,028 29,106,568 24,284,121 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, Total transfer payments $42,286,653 41,175,998 40,065,343 38,954,589 37,844,034 35,622,725 33,401,415 31,180,106 28,958,796 26,737,487 24,516,178 4,155,414 34,794,484 35,522,023 328,109,108 270,411,736 Transfer payments to CW–1 workers $28,877,022 27,766,367 26,655,712 25,545,058 24,434,403 22,213,094 19,991,784 17,770,475 15,549,165 13,327,856 11,106,547 903,007 21,387,623 22,117,381 201,683,522 168,638,772 Transfer payments to U.S. workers $13,409,631 13,409,631 13,409,631 13,409,631 13,409,631 13,409,631 13,409,631 13,409,631 13,409,631 13,409,631 13,409,631 3,352,408 13,406,860 13,404,642 126,425,586 102,042,965 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] CW–1 occupation title SOC code Accountant ................... Civil Engineer ............... Architect/Surveyor ........ Fisher/Hunter/Trapper .. Baseline wage 132011 172051 173031 453011 CNMI survey wage $12.86 23.52 8.06 7.25 Guam OES wage $12.86 N/A N/A N/A $22.23 29.06 N/A N/A National OES wage $37.46 44.13 22.28 15.00 Assigned wage $12.86 29.06 22.28 15.00 Wage difference $0.00 5.54 14.22 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 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. VerDate Sep<11>2014 20:01 Mar 29, 2019 Jkt 247001 PO 00000 Frm 00050 Fmt 4701 Sfmt 4700 E:\FR\FM\01APR2.SGM 01APR2 Federal Register / Vol. 84, No. 62 / Monday, April 1, 2019 / Rules and Regulations 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 11.25year 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 12429 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] CW–1 occupation title SOC code Accountant ................... Civil Engineer ............... Architect/Surveyor ........ Fisher/Hunter/Trapper .. Baseline wage 132011 172051 173031 453011 $12.86 23.52 8.06 7.25 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 11.25year 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-andcomment requirements of the APA, 5 VerDate Sep<11>2014 20:01 Mar 29, 2019 Jkt 247001 CNMI survey wage Guam OES wage $12.86 N/A N/A N/A $22.23 29.06 N/A N/A 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-andcomment 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. 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 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). PO 00000 Frm 00051 Fmt 4701 Sfmt 4700 Federal minimum wage $7.25 7.25 7.25 7.25 Assigned wage $12.86 29.06 7.25 7.25 Wage difference $0.00 5.54 ¥0.81 0.00 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 E:\FR\FM\01APR2.SGM 01APR2 12430 Federal Register / Vol. 84, No. 62 / Monday, April 1, 2019 / Rules and Regulations 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 VerDate Sep<11>2014 20:01 Mar 29, 2019 Jkt 247001 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 PO 00000 Frm 00052 Fmt 4701 Sfmt 4700 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 employerclient, 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. E:\FR\FM\01APR2.SGM 01APR2 Federal Register / Vol. 84, No. 62 / Monday, April 1, 2019 / Rules and Regulations Agency Form Number: Form ETA– 9142C; Form ETA–9141C; recordkeeping requirements. Affected Public: Private Sector— businesses or other for-profits; nonprofits. 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 foreignbased companies in domestic or export markets. VerDate Sep<11>2014 20:01 Mar 29, 2019 Jkt 247001 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 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). PO 00000 Frm 00053 Fmt 4701 Sfmt 4700 12431 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). ■ 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. E:\FR\FM\01APR2.SGM 01APR2 12432 Federal Register / Vol. 84, No. 62 / Monday, April 1, 2019 / Rules and Regulations 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] § 655.400 subpart. Scope and purpose of this (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 CNMIOnly 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. VerDate Sep<11>2014 20:01 Mar 29, 2019 Jkt 247001 § 655.401 Authority of the agencies, offices, and divisions in the Department of Labor. Attorney means any person who is a member in good standing of the bar of the highest court of any State, The Secretary has delegated authority possession, territory, or commonwealth to the Assistant Secretary for the of the United States, or the District of Columbia. Such a person is also Employment and Training permitted to act as an agent under this Administration (ETA), who in turn has subpart. No attorney who is under delegated that authority to the Office of suspension, debarment, expulsion, or Foreign Labor Certification (OFLC), to disbarment from practice before any issue certifications and carry out other court, the Department, the Executive statutory responsibilities as required by Office for Immigration Review, or DHS 48 U.S.C. 1806. Determinations on a under 8 CFR 1003.101 or 292.3, may CW–1 Application for Temporary represent an employer under this Employment Certification are made by subpart. the OFLC Administrator who, in turn, Board of Alien Labor Certification may delegate this responsibility to Appeals (BALCA or Board) means the designated staff members, e.g., a permanent Board established by part Certifying Officer (CO). 656 of this chapter, chaired by the Chief § 655.402 Definition of terms. Administrative Law Judge (Chief ALJ), and consisting of ALJs appointed For purposes of this subpart: Administrative Law Judge (ALJ) means pursuant to 5 U.S.C. 3105 and a person within the Department’s Office designated by the Chief ALJ to be of Administrative Law Judges appointed members of BALCA. Certifying Officer or CO means the under 5 U.S.C. 3105. person who makes determination on a Agent means a person or a legal CW–1 Application for Temporary entity, such as an association or other Employment Certification filed under organization of employers, or an the CW–1 program. The OFLC attorney for an association or other Administrator is the national CO. Other organization of employers, that: COs may also be designated by the (1) Is authorized to act on behalf of OFLC Administrator to make the the employer for Temporary Labor determinations required under this Certification (TLC) purposes; (2) Is not itself an employer, or a joint subpart, including making PWDs. Chief Administrative Law Judge or employer, as defined in this subpart Chief ALJ means the chief official of the with respect to the specific application; Department’s Office of Administrative and Law Judges or the Chief ALJ’s designee. (3) Is not under suspension, CNMI Department of Labor means the debarment, expulsion, disbarment, or executive Department of the otherwise restricted from practice before Commonwealth Government that any court, the Department, the administers employment and job Executive Office for Immigration training activities for employers and Review or DHS under 8 CFR 292.3 or U.S. workers in the Commonwealth. 1003.101. Commonwealth or CNMI means the Applicant (or U.S. applicant) means a Commonwealth of the Northern Mariana U.S. worker who is applying for a job Islands. opportunity for which an employer has Corresponding employment means filed a CW–1 Application for Temporary the employment of U.S. workers who Employment Certification. are not CW–1 workers by an employer Application for Prevailing Wage who has an approved CW–1 Application Determination means the Office of for Temporary Employment Management and Budget (OMB)Certification in any work included in approved Form ETA–9141C (or the approved job offer, or in any work successor form) and the appropriate performed by the CW–1 workers. To appendices, submitted by an employer qualify as corresponding employment to secure a prevailing wage the work must be performed during the determination (PWD) from the National validity period of the CW–1 Application Prevailing Wage Center (NPWC). for Temporary Employment CW–1 Application for Temporary Certification and approved job offer, Employment Certification means the including any approved extension OMB-approved Form ETA–9142C (or thereof. CW–1 Petition means the U.S. successor form) and the appropriate appendices, a valid wage determination, Citizenship and Immigration Services (USCIS) Form I–129CW, Petition for a as required by § 655.410, and all supporting documentation submitted by CNMI–Only Nonimmigrant Transitional Worker, a successor form, other form, or an employer to secure a TLC electronic equivalent, any supplemental determination from the OFLC information requested by USCIS, and Administrator. PO 00000 Frm 00054 Fmt 4701 Sfmt 4700 E:\FR\FM\01APR2.SGM 01APR2 Federal Register / Vol. 84, No. 62 / Monday, April 1, 2019 / Rules and Regulations 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 VerDate Sep<11>2014 20:01 Mar 29, 2019 Jkt 247001 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 dayto-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 PO 00000 Frm 00055 Fmt 4701 Sfmt 4700 12433 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. E:\FR\FM\01APR2.SGM 01APR2 12434 Federal Register / Vol. 84, No. 62 / Monday, April 1, 2019 / Rules and Regulations 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, VerDate Sep<11>2014 20:01 Mar 29, 2019 Jkt 247001 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 employmentauthorized 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. § 655.403 to file. Persons and entities authorized (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 § 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. § 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 PO 00000 Frm 00056 Fmt 4701 Sfmt 4700 demonstrating the agent’s authority to represent the employer to the NPC at the time of filing the application. §§ 655.405–655.409 [Reserved] Prefiling Procedures § 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. E:\FR\FM\01APR2.SGM 01APR2 Federal Register / Vol. 84, No. 62 / Monday, April 1, 2019 / Rules and Regulations (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–9141C. (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; VerDate Sep<11>2014 20:01 Mar 29, 2019 Jkt 247001 (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 § 655.431, or audit, as described in § 655.470, or to any Federal Government Official performing an investigation, inspection, audit, or law enforcement function. PO 00000 Frm 00057 Fmt 4701 Sfmt 4700 12435 § 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 § 655.461. § § 655.412 –655.419 [Reserved] CW–1 Application for Temporary Employment Certification Filing Procedures § 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), E:\FR\FM\01APR2.SGM 01APR2 12436 Federal Register / Vol. 84, No. 62 / Monday, April 1, 2019 / Rules and Regulations 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–9142C. (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 VerDate Sep<11>2014 20:01 Mar 29, 2019 Jkt 247001 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, PO 00000 Frm 00058 Fmt 4701 Sfmt 4700 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. § 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 employerclient 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 § 655.420(d), and be accompanied by the contract or agreement establishing E:\FR\FM\01APR2.SGM 01APR2 Federal Register / Vol. 84, No. 62 / Monday, April 1, 2019 / Rules and Regulations 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 §§ 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 § 655.446. (2) All recruitment conducted by the joint employers must satisfy the job offer assurance and advertising content requirements identified in § 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 employerclient) 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 § 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 VerDate Sep<11>2014 20:01 Mar 29, 2019 Jkt 247001 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. § 655.422 (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 § 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. Emergency situations. (a) Waiver of PWD requirement prior to application filing. The CO may waive the requirement to obtain a PWD, as required under § 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 § 655.450. The requirement to obtain a PWD prior to filing the CW–1 Application for Temporary Employment Certification, under § 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 governmentcontrolled 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. PO 00000 12437 Frm 00059 Fmt 4701 Sfmt 4700 § 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 piecerate 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 piecerate 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 piecerate 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 E:\FR\FM\01APR2.SGM 01APR2 12438 Federal Register / Vol. 84, No. 62 / Monday, April 1, 2019 / Rules and Regulations 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 VerDate Sep<11>2014 20:01 Mar 29, 2019 Jkt 247001 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 § 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. PO 00000 Frm 00060 Fmt 4701 Sfmt 4700 (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 × 48 hours/week = 480 hours × 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 × 48 hours/week = 480 hours¥8 hours (Federal holiday) = 472 hours × 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 piecerate 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 E:\FR\FM\01APR2.SGM 01APR2 Federal Register / Vol. 84, No. 62 / Monday, April 1, 2019 / Rules and Regulations 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 VerDate Sep<11>2014 20:01 Mar 29, 2019 Jkt 247001 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 piecerate 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 PO 00000 Frm 00061 Fmt 4701 Sfmt 4700 12439 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 § 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 E:\FR\FM\01APR2.SGM 01APR2 12440 Federal Register / Vol. 84, No. 62 / Monday, April 1, 2019 / Rules and Regulations 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 VerDate Sep<11>2014 20:01 Mar 29, 2019 Jkt 247001 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 § 655.402, regardless of race, color, national origin, age, sex, religion, PO 00000 Frm 00062 Fmt 4701 Sfmt 4700 disability, or citizenship. Rejections of any U.S. workers who applied or apply for the job must only be for lawful, jobrelated 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 § 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 §§ 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 E:\FR\FM\01APR2.SGM 01APR2 Federal Register / Vol. 84, No. 62 / Monday, April 1, 2019 / Rules and Regulations 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 threefourths 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. §§ 655.424–655.429 [Reserved] Processing of an CW–1 Application for Temporary Employment Certification § 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 § 655.431 or a Notice of Acceptance (NOA) under § 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 VerDate Sep<11>2014 20:01 Mar 29, 2019 Jkt 247001 Certification or of administering program integrity measures such as audits. § 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 § 655.432 for submitting a modified application, the CO will deny the CW– 1 Application for Temporary Employment Certification. § 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 § 655.453. (d) Appeal from denial of modified CW–1 Application for Temporary PO 00000 Frm 00063 Fmt 4701 Sfmt 4700 12441 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 § 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 § 655.441. The employer must make such modifications, or the application will be denied under § 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. § 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 §§ 655.442 through 655.444, including any additional recruitment ordered by the CO under § 655.445; (2) State that such employerconducted recruitment must begin within 14 calendar days from the date the NOA is issued, consistent with § 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 § 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. § 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 E:\FR\FM\01APR2.SGM 01APR2 12442 Federal Register / Vol. 84, No. 62 / Monday, April 1, 2019 / Rules and Regulations 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 § 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 VerDate Sep<11>2014 20:01 Mar 29, 2019 Jkt 247001 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. §§ 655.435–655.439 [Reserved] Post Acceptance Requirements § 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 employerconducted recruitment. Unless otherwise instructed by the CO, the employer must begin the recruitment required in §§ 655.442 through 655.445 within 14 calendar days from the date the NOA is issued. All employerconducted recruitment must be completed before the employer submits the recruitment report as required in § 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 § 655.446, by the date specified by the CO in the NOA. PO 00000 Frm 00064 Fmt 4701 Sfmt 4700 § 655.441 Job offer assurances and advertising contents. (a) General. All recruitment conducted under §§ 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 § 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 § 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 § 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 E:\FR\FM\01APR2.SGM 01APR2 Federal Register / Vol. 84, No. 62 / Monday, April 1, 2019 / Rules and Regulations conclusion of the job opportunity, as required by § 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 § 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. § 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 § 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. § 655.443 workers. Contact with former U.S. 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 VerDate Sep<11>2014 20:01 Mar 29, 2019 Jkt 247001 § 655.442. The employer must retain documentation sufficient to prove such contact in accordance with § 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 § 655.423(v). § 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 § 655.456. § 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 employerconducted 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 PO 00000 Frm 00065 Fmt 4701 Sfmt 4700 12443 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 employerconducted 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 § 655.456. § 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 § 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 § 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 E:\FR\FM\01APR2.SGM 01APR2 12444 Federal Register / Vol. 84, No. 62 / Monday, April 1, 2019 / Rules and Regulations 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 § 655.456. §§ 655.447–655.449 [Reserved] Labor Certification Determinations § 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 § 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. § 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. § 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 § 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 VerDate Sep<11>2014 20:01 Mar 29, 2019 Jkt 247001 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 § 655.456. § 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 § 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 § 655.461; and (c) State that if the employer does not request administrative review in accordance with § 655.461, the denial is final, and the Department will not accept any appeal on that CW–1 Application for Temporary Employment Certification. § 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 § 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 § 655.461; and PO 00000 Frm 00066 Fmt 4701 Sfmt 4700 (c) State that if the employer does not request administrative judicial review in accordance with § 655.461, the partial certification is final, and the Department will not accept any appeal on that CW– 1 Application for Temporary Employment Certification. § 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. § 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 § 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: E:\FR\FM\01APR2.SGM 01APR2 Federal Register / Vol. 84, No. 62 / Monday, April 1, 2019 / Rules and Regulations (1) Proof of recruitment efforts, including: (i) Placement of the job offer with the CNMI Department of Labor as specified in § 655.442; (ii) Contact with former U.S. employees as specified in § 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 § 655.444; and (iv) All additional employerconducted recruitment required by the CO as specified in § 655.445. (2) Documentation supporting the information submitted in the recruitment report prepared in accordance with § 655.446, such as evidence of nonapplicability of contact with former workers as specified in § 655.443 and any supporting resumes and contact information as specified in § 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 § 655.423(i). (4) If applicable, records of reimbursement of transportation and subsistence costs incurred by the workers, as specified in § 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 § 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 § 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 § 655.423(v). (8) A copy of the CW–1 Application for Temporary Employment Certification and all accompanying appendices, including any modifications, amendments, or VerDate Sep<11>2014 20:01 Mar 29, 2019 Jkt 247001 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. §§ 655.457–655.459 [Reserved] Post Certification Activities § 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 § 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 § 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. § 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; PO 00000 Frm 00067 Fmt 4701 Sfmt 4700 12445 (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 E:\FR\FM\01APR2.SGM 01APR2 12446 Federal Register / Vol. 84, No. 62 / Monday, April 1, 2019 / Rules and Regulations business days after receipt of the Appeal File, whichever is later, using means normally assuring expedited delivery. § 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 § 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. § 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. §§ 655.464–655.469 [Reserved] Integrity Measures § 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 § 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 VerDate Sep<11>2014 20:01 Mar 29, 2019 Jkt 247001 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. § 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 § 655.461 apply. (c) Assisted recruitment. The assisted recruitment process will be in addition to any recruitment required of the employer by §§ 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 PO 00000 Frm 00068 Fmt 4701 Sfmt 4700 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 § 655.473. § 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 § 655.473(d); or (3) The employer impeded the audit process, as set forth in § 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 E:\FR\FM\01APR2.SGM 01APR2 Federal Register / Vol. 84, No. 62 / Monday, April 1, 2019 / Rules and Regulations 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 § 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 § 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. § 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 VerDate Sep<11>2014 20:01 Mar 29, 2019 Jkt 247001 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, jobrelated 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 § 655.431, or the assisted recruitment process, as set forth in § 655.471; (vi) Impeding the audit process, as set forth in § 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 § 655.423(n) or (o); PO 00000 Frm 00069 Fmt 4701 Sfmt 4700 12447 (ix) A violation of any of the provisions listed in § 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 E:\FR\FM\01APR2.SGM 01APR2 12448 Federal Register / Vol. 84, No. 62 / Monday, April 1, 2019 / Rules and Regulations 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 VerDate Sep<11>2014 20:01 Mar 29, 2019 Jkt 247001 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 PO 00000 Frm 00070 Fmt 4701 Sfmt 9990 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. §§ 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 E:\FR\FM\01APR2.SGM 01APR2

Agencies

[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





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 Employment and Training Administration





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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).
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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).
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \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'').
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \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.'').

---------------------------------------------------------------------------

[[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\
---------------------------------------------------------------------------

    \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/.
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \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/.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \24\ See OFLC Frequently Asked Questions and Answers, https://www.foreignlaborcert.doleta.gov/faqsanswers.cfm.
---------------------------------------------------------------------------

    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.
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    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\
---------------------------------------------------------------------------

    \27\ 20 CFR part 655, subpart A; 20 CFR part 655, subpart B.
---------------------------------------------------------------------------

    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).
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    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).
---------------------------------------------------------------------------

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).
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \44\ 20 CFR 655.41; 20 CFR 655.18; 20 CFR 655.151; 20 CFR 
655.122.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \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. 12866.
    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-
9141C.
    (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-9142C.
    (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