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DOJ/CRT

RIN: 1190-AA48

Publication ID: Fall 2008

Title: The Failure To Select Cause of Action of the American Competitiveness and Workforce Improvement Act of 1998
Abstract: The American Competitiveness and Workforce Improvement Act (ACWIA)--enacted as part of the Omnibus Consolidated and Emergency Supplemental Appropriations Act of 1998--made various changes to the Immigration and Nationality Act (the INA) relating to temporary nonimmigrant professionals. In this rule (RIN 1190-AA48), the Department's Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) will implement the ACWIA "failure to select" protections--codified in the INA at section 212(n)(5)--by establishing a process under which U.S. workers may file complaints against certain employers deemed "H-1B dependent" that deny them employment opportunities by improperly hiring temporary foreign professionals on H-1B visas. Under this process, OSC may receive and review these complaints, and then--if there is reasonable cause to believe the allegations--initiate binding arbitration proceedings through the Federal Mediation and Conciliation Service (FMCS). Although this cause of action, originally enacted in ACWIA, sunset on October 1, 2003, it was revived in the H-1B Visa Reform Act of 2004. This rule also changes regulations of the Office of the Chief Administrative Hearing Officer (OCAHO) of the Executive Office for Immigration Review (EOIR) to provide for the review of arbitrators' decisions and, where appropriate, the award of administrative relief for a "failure to select" cause of action under the American Competitiveness and Workforce Improvement Act of 1998. This new cause of action allows an aggrieved party to file a complaint against a covered employer when it seeks to hire an H-1B visa holder over an equally or better qualified United States worker who applied for the job. Arbitrators of the Federal Mediation and Conciliation Service will adjudicate the complaints. The regulation also allows the Office of the Chief Administrative Hearing Officer to review the Arbitrator's findings, if necessary, and to impose remedies against the employer. This rule is being coordinated with EOIR, the Department of Labor (DOL), and the FMCS.
Agency: Department of Justice(DOJ)	Priority: Other Significant
RIN Status: Previously published in the Unified Agenda	Agenda Stage of Rulemaking: Proposed Rule Stage
Major: No	Unfunded Mandates: No
CFR Citation: 28 CFR 44.500 28 CFR 68
Legal Authority: 8 USC 1182(n)(5) 8 USC 1103(a) 8 USC 1182(n) 8 USC 1324b

Legal Deadline: None

Timetable:

Action	Date	FR Cite
NPRM	04/00/2009

Additional Information: ACWIA increased the numerical cap on H-1B nonimmigrant aliens; required certain dependent employers to make additional attestations to the Department of Labor (DOL); increased the penalties for employers who have been found to be in violation of DOL's rules; and created a "whistle blower" clause to protect H-1B workers who filed complaints against their employer.
Regulatory Flexibility Analysis Required: Undetermined	Government Levels Affected: None
Federalism: No
Included in the Regulatory Plan: No
RIN Data Printed in the FR: No
Agency Contact: Katherine A. Baldwin Deputy Special Counsel Department of Justice Civil Rights Division Office of Special Counsel for Unfair Employment Practices, Office of Special Counsel for Immigration-Related Unfair Employment Practices, 950 Pennsylvania Avenue NW, Washington, DC 20530 Phone:202 616-5594 Fax:202 616-5509 Jean King General Counsel Department of Justice Executive Office for Immigration Review 5107 Leesburg Pike, Suite 2600, Falls Church, VA 22041 Phone:703 305-0470 Fax:703 305-0443 Email: eoir.regs@usdoj.gov