82 FR 36158 - Comment Request for Information Collection for Form ETA-9035, Labor Condition Application for Nonimmigrant Workers (OMB Control Number 1205-0310), Revision of a Currently Approved Collection

DEPARTMENT OF LABOR
Employment and Training Administration

Federal Register Volume 82, Issue 148 (August 3, 2017)

The Department of Labor (DOL or Department), as part of its effort to streamline information collection, clarify statutory and regulatory requirements, and provide greater transparency and oversight in the H-1B, H-1B1, and E-3 nonimmigrant visa application processes, conducts a preclearance consultation program to provide the public and Federal agencies with an opportunity to comment on proposed and/or continuing collections of information in accordance with the Paperwork Reduction Act of 1995. This program 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. Currently, ETA is soliciting comments concerning the extension of the approval for the information collection, Office of Management and Budget (OMB) Control Number 1205-0310, containing Form ETA-9035--Labor Condition Application for Nonimmigrant Workers; Form ETA-9035E--Labor Condition Application for Nonimmigrants Workers (electronic version); Form ETA-9035CP--General Instructions for the 9035 & 9035E; Wage and Hour Division (WHD) Form WH-4--Nonimmigrant Worker Information Form; and other H-1B related information collection and retention requirements, which expire May 31, 2018. A copy of the proposed information collection request can be obtained by contacting the office listed below in the addressee section of this notice. The Form ETA-9035/9035E must be used by employers seeking to employ a foreign worker in a specialty occupation or as a fashion model of distinguished merit and ability under the H-1B, H-1B1, and E-3 nonimmigrant visa classifications. The Form ETA-9035/9035E must be certified by the DOL before the Department of Homeland Security's United States Citizenship and Immigration Services (USCIS) may approve a petition authorizing admission of a foreign worker under the visa classification. The Form WH-4 is used to request that DOL's Wage and Hour Division initiate an investigation related to alleged violations of H-1B, H-1B1 and E-3 program requirements.

[Federal Register Volume 82, Number 148 (Thursday, August 3, 2017)]
[Notices]
[Pages 36158-36159]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2017-16293]


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DEPARTMENT OF LABOR

Employment and Training Administration


Comment Request for Information Collection for Form ETA-9035, 
Labor Condition Application for Nonimmigrant Workers (OMB Control 
Number 1205-0310), Revision of a Currently Approved Collection

AGENCY: Employment and Training Administration (ETA), Labor.

ACTION: Notice.

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SUMMARY: The Department of Labor (DOL or Department), as part of its 
effort to streamline information collection, clarify statutory and 
regulatory requirements, and provide greater transparency and oversight 
in the H-1B, H-1B1, and E-3 nonimmigrant visa application processes, 
conducts a preclearance consultation program to provide the public and 
Federal agencies with an opportunity to comment on proposed and/or 
continuing collections of information in accordance with the Paperwork 
Reduction Act of 1995. This program 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.
    Currently, ETA is soliciting comments concerning the extension of 
the approval for the information collection, Office of Management and 
Budget (OMB) Control Number 1205-0310, containing Form ETA-9035--Labor 
Condition Application for Nonimmigrant Workers; Form ETA-9035E--Labor 
Condition Application for Nonimmigrants Workers (electronic version); 
Form ETA-9035CP--General Instructions for the 9035 & 9035E; Wage and 
Hour Division (WHD) Form WH-4--Nonimmigrant Worker Information Form; 
and other H-1B related information collection and retention 
requirements, which expire May 31, 2018. A copy of the proposed 
information collection request can be obtained by contacting the office 
listed below in the addressee section of this notice.
    The Form ETA-9035/9035E must be used by employers seeking to employ 
a foreign worker in a specialty occupation or as a fashion model of 
distinguished merit and ability under the H-1B, H-1B1, and E-3 
nonimmigrant visa classifications. The Form ETA-9035/9035E must be 
certified by the DOL before the Department of Homeland Security's 
United States Citizenship and Immigration Services (USCIS) may approve 
a petition authorizing admission of a foreign worker under the visa 
classification. The Form WH-4 is used to request that DOL's Wage and 
Hour Division initiate an investigation related to alleged violations 
of H-1B, H-1B1 and E-3 program requirements.

DATES: Written comments must be submitted to the office listed in the 
addresses section below on or before October 2, 2017.

ADDRESSES: Submit written comments to William W. Thompson II, 
Administrator, Office of Foreign Labor Certification, Box# 12-200, 
Employment & Training Administration, U.S. Department of Labor, 200 
Constitution Avenue NW., Washington, DC 20210. Telephone number: 202-
513-7350 (this is not a toll-free number).
    Individuals with hearing or speech impairments may access the 
telephone number above via TTY by calling the toll-free Federal 
Information Relay Service at 1-877-889-5627 (TTY/TDD). Fax: 202-513-
7395. Email: [email protected] subject line: ETA-9035. A copy of 
the proposed information collection request (ICR) can be obtained by 
contacting the office listed above.

SUPPLEMENTARY INFORMATION: 

I. Background

    The information collection is required by sections 212(n) and (t) 
and 214(c) of the Immigration and Nationality Act (INA) (8 U.S.C. 
1182(n) and (t), and 1184(c)). The Department and the Department of 
Homeland Security have promulgated regulations to implement the INA. 
Specifically for this collection, 20 CFR 655 Subparts H and I, and 8 
CFR 214.2(h)(4) are applicable. The INA mandates that no alien may 
enter the United States (U.S.) to perform work in a specialty 
occupation or as a fashion model unless the U.S. employer makes certain 
attestations to the Secretary of Labor (Secretary). Those attestations 
include that the working conditions for the alien will not adversely 
affect the working conditions of similarly employed U.S. workers; that 
the employer will offer a wage that is at least the higher of the 
prevailing wage for the occupational classification in the area of 
employment or the actual wage paid by the employer to all other 
individuals with similar experience and qualifications for the specific 
employment in question; that there is no strike or lockout in the 
course of a labor dispute in the occupational classification at the 
place of employment; and that the employer has provided notice of the 
filing of the LCA. In addition, further attestations are generally 
required for H-1B dependent employers and willful violators. The 
current ICR expires May 31, 2018. The Department is seeking revisions 
to the Form 9035/9035E and Form 9035CP Instructions in order to 
streamline parts of the current information collection to assist the 
regulated community with form completion; provide greater clarity of 
existing employer obligations under the programs; and promote greater 
program transparency by collecting additional information on the 
employment of temporary nonimmigrant workers by U.S. employers. The 
Department is also seeking revisions to the Form WH-4 in order to 
provide the form in a LIVECYCLE document to improve accessibility and 
compliance with Section 508 of the Rehabilitation Act (29 U.S.C. 794d), 
as amended by the

[[Page 36159]]

Workforce Investment Act of 1998 (Pub. L. 105-220), August 7, 1998 SEC. 
508; assist the regulated community with form completion; and collect 
additional information to facilitate complainant communication for the 
enforcement of Forms 9035 and 9035E.

II. Review Focus

    DOL is particularly interested in comments that:
     Evaluate whether the proposed collection of information is 
necessary for the proper performance of the functions of the agency, 
including whether the information will have practical utility;
     evaluate the accuracy of the agency's estimate of the 
burden of the proposed collection of information, including the 
validity of the methodology and assumptions used; and also the agency's 
estimates associated with the annual burden cost incurred by 
respondents and the government cost associated with this collection of 
information;
     enhance the quality, utility, and clarity of the 
information to be collected; and
     minimize the burden of the collection of information on 
those who are to respond, including through the use of appropriate 
automated, electronic, mechanical, or other technological collection 
techniques or other forms of information technology, e.g., permitting 
electronic submissions of responses.

III. Current Actions

    In order to meet its statutory responsibilities under the INA, the 
Department needs to extend an existing collection of information 
pertaining to labor condition applications that are used in the H-1B, 
H-1B1, and E-3 visa programs and allow employers to bring foreign labor 
to the U.S. on a temporary basis.
    This information collection is subject to the PRA. 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 the OMB under the PRA and displays 
a currently valid OMB Control Number. In addition, notwithstanding any 
other provisions of law, no person shall generally be subject to 
penalty for failing to comply with a collection of information that 
does not display a valid Control Number. See 5 CFR 1320.5(a) and 
1320.6. The DOL obtains OMB approval for this information collection 
under Control Number 1205-0310. OMB authorization for an ICR cannot be 
for more than three (3) years without renewal, and the current approval 
for this collection is scheduled to expire on May 31, 2018. The DOL 
seeks to extend PRA authorization for this revised information 
collection for three (3) more years.
    In the past the respondents have been for-profit businesses and 
not-for-profit institutions. On rare occasions the respondents have 
been local, State, tribal governments, or the Federal government. The 
Secretary uses the collected information to determine if employers are 
meeting their statutory and regulatory obligations.

A. General

    Title: Labor Condition Application for H-1B, H-1B1, and E-3 Non-
immigrants.
    Type of Review: Revision.

OMB Number: 1205-0310.

B. ETA Forms and Information Collections

    Title(s): Labor Condition Application for Nonimmigrant Workers, and 
General Instructions for the 9035 & 9035E.
    Affected Public: Private Sector (businesses or other for-profits 
and not-for-profit institutions) and State, Local, and Tribal 
Governments.
    Form(s): ETA forms ETA-9035, ETA-9035E, and ETA-9035CP.
    Total Annual Respondents: 569,260.
    Annual Frequency: On occasion.
    Total Annual Responses: One per respondent.
    Average Time per Response: 1.25 hours for forms ETA-9035/9035E, 
Appendix A (0.33 hour), and ETA-9035CP.
    For other steps conducted:

 Documentation of Corporate Identity--1 hour
 H-1B Employer's Only--Determination of H-1B Dependency--0.5 
hour
 H-1B Employer's Only--Determination of H-1B Dependency-
Document Retention--0.05 hour
 List of Exempt H-1B Employees in Public Access File--0.25 hour
 Record of Assurances of Non-displacement of U.S. Workers at 
Second Employer's Worksite--0.166 hour (x5 times annually)
 Offers of Employment to Displaced U.S. Workers--0.33 hour
 Documentation of U.S. Worker Recruitment--0.33 hour
 Documentation of Fringe Benefits--1.5 hour
 Documentation of Fringe Benefits for Multinational Employers--
0.5 hour
 Wage Recordkeeping requirements Applicable to Employers of H-
1B Nonimmigrants--2.5 hour

    Estimated Total Annual Burden Hours: 910,844.
    Total Annual Burden Cost for Respondents: $53,171,155.

C. WHD Form

    Title(s): Nonimmigrant Worker Information Form.
    Affected Public: Individuals or Households.
    Form(s): WH-4.
    Total Annual Respondents: 225.
    Annual Frequency: Once.
    Total Annual Responses: 225.
    Average Time per Response: 0.333 hours.
    Estimated Total Annual Burden Hours: 75.
    Total Annual Burden Cost for Respondents: $4330.20.
    Comments submitted in response to this comment request will be 
summarized and/or included in the request for OMB approval of the ICR; 
they will also become a matter of public record. Commenters are 
encouraged not to disclose private and/or sensitive information (e.g., 
Social Security Numbers or confidential business information).

Byron Zuidema,
Deputy Assistant Secretary for Employment and Training Administration, 
Department of Labor.
[FR Doc. 2017-16293 Filed 8-2-17; 8:45 am]
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