TITLE 20 - EMPLOYEES' BENEFITS

CHAPTER V - EMPLOYMENT AND TRAINING ADMINISTRATION, DEPARTMENT OF LABOR

PART 655 - TEMPORARY EMPLOYMENT OF ALIENS IN THE UNITED STATES

subpart j - ATTESTATIONS BY EMPLOYERS USING F - 1 STUDENTS IN OFF - CAMPUS WORK

655.900 - Purpose, procedure and applicability of subparts J and K of this part.

  (a) Purpose. The Immigration Act of 1990 (Act) at section 221 creates a three-year work authorization program beginning October 1, 1991, for aliens admitted as F1 students described in subparagraph (F) of section 101 (a)(15) of the Immigration and Nationality Act. 8 U.S.C. 1101(a)(15)(F). The Act specifies that the Attorney General shall grant an alien authorization to be employed in a position unrelated to the alien's field of study (i.e., a position not involving curricular or post-graduate practical training) and off-campus if: (1) The alien has completed one year of school as an F1 student and is maintaining good academic standing at the educational institution; (2) The employer provides the educational institution and the Secretary of Labor with an attestation regarding recruitment and rate of pay specified in paragraph (b) of this section; and (3) The alien will not be employed more than 20 hours each week during the academic term (but may be employed on a full-time basis during vacation periods and between academic terms).

Subpart J of this part sets forth the procedure for filing attestations with the Department of Labor (the Department or DOL) for employers who seek to use F1 students for off-campus work. Subpart K of this part sets forth complaint, investigation, and disqualification provisions with respect to such attestations.

  (b) Procedure. (1) An employer must comply with the following procedure in order to hire F1 students for off-campus employment: (i) Recruit for 60 days before filing an attestation; (ii) File the attestation with the DOL and the Designated School Official (DSO) of the educational institution before hiring any F1 student(s); (iii) Hire F1 student(s) during the 90-day period following the last day of the recruitment period; and (iv) Initiate a new 60-day recruitment effort in order to hire any F1 student(s), under the valid attestation, after the 90-day hiring period.

(A job order placed with the SESA as part of the employer's initial recruitment which remains open with the SESA shall satisfy the requirement regarding a new 60-day recruitment effort.) (2) The employer's attestation shall state that the employer: (i) Has recruited unsuccessfully for at least 60 days for the position and will recruit for 60 days for each position in which an F1 student is hired under that attestation until September 30, 1996; and (ii) Will provide for payment to the alien and to other similarly situated workers at a rate not less than the actual wage for the occupation at the place of employment, or if greater, the prevailing wage for the occupation in the area of intended employment.

  (3) The employer shall file the attestation with the Designated School Official (DSO) of each educational institution from which it seeks to hire F1 students. In fulfilling this requirement, the employer may file the attestation initially: (i) With the appropriate Regional Office of ETA only; or (ii) Simultaneously with the DSO and the appropriate Regional Office of ETA.

In either instance, under paragraph (b)(3) of this section, ETA will return to the employer a copy of the attestation with ETA's acceptance indicated thereon. The employer must then send a copy of each accepted attestation to the DSO. Where the employer has chosen to file the attestation simultaneously with DOL and the DSO, as described in paragraph (b)(3)(ii) of this section, the employer shall provide a copy of the accepted attestation to the DSO within 15 days after receiving the accepted attestation from DOL. The employer shall also retain the accepted attestation and produce it in the event the Department conducts an investigation to determine if the employer has made an attestation that is materially false or has failed to pay wages in accordance with the attestation. In no case may an employer hire an F1 student for off-campus employment without first filing an attestation with DOL and the DSO. The employer may not file the attestation with the DSO before it is filed with DOL or in the absence of filing the attestation with DOL. The DSO may treat an attestation as accepted for filing by DOL for the purpose of authorizing F1 student employment upon its receipt by the school.

  (4) The employer may file an attestation for one or more openings in the same occupation, or one or more positions in more than one occupation, provided that all occupations are listed on the attestation and all positions are located within the same geographic area of intended employment.

  (5) The attestation shall be deemed accepted for filing on the date it is received by DOL. Where the attestation is not completed as set forth at 655.940(f)(1) of this part, it shall be returned to the employer which will have 15 days to correct the deficiency or it will be rejected. If the attestation is rejected, DOL will notify INS.

Attestations deemed unacceptable under 655.940(f)(2) of this part may not be resubmitted.

  (c) Applicability. Subparts J and K of this part apply to all employers who seek to employ F1 students in off-campus work in positions unrelated to their field(s) of study.

  (d) Final date. ETA will not accept attestations under this program after September 30, 1996.

  (e) Revalidation of employer attestations in effect on November 30, 1995. Any employer's attestation which was valid on November 30, 1995, is revalidated effective on November 30, 1995, and shall remain valid through September 30, 1996, unless withdrawn or invalidated.

[56 FR 56865, 56876, Nov. 6, 1991, as amended at 59 FR 64776, 64777, Dec. 15, 1994; 60 FR 61210, 61211, Nov. 29, 1995]