| Foreign Labor Certification |
D-1 Crewmembers CertificationQualifying Criteria
Performance of longshore work at U.S. ports by D-1 crewmembers on
foreign vessels is generally prohibited with few exemptions. The Department of Labor is
responsible for administering two of those exemptions. Employers in these ports
are required to file an attestation with the Department of Labor, to:
Administrator, Office of Foreign Labor Certification
Employment and Training Administration
U.S. Department of Labor, Room C-4312
200 Constitution Avenue, NW
Washington, DC 20210.
The attestation should state that the use of alien crewmembers to perform longshore work is the prevailing practice for the activity at that port, there is no strike or lockout at the place of employment, and that notice has been given to U.S. workers or their representatives. Another exception requires that, before using alien crewmen to perform longshore activities in the State of Alaska, the employer will make a bona fide request for and employ U.S. longshore workers who are qualified and available in sufficient numbers from contract stevedoring companies, labor organizations recognized as exclusive bargaining representatives of U.S. longshore workers, and private dock operators.
Violations may produce penalties to the employer of up to $5,000 for each crewmember wrongfully performing longshore work, and could bar vessels owned or chartered by the employer from entering all U.S. ports for up to one year. There has been no activity under the prevailing practice exception since the enactment of legislation creating a separate exception for the performance of longshore work at locations in the State of Alaska.
Title 20 CFR Part 655, Subparts F and G, govern the filing and enforcement of attestations by employers seeking to use foreign crewmembers to perform longshore activities at U.S. ports and at locations in the State of Alaska. The DOL reviews the completed Form ETA 9033 (prevailing practice exception), or the completed Form ETA 9033-A (Alaska exception), and all supporting documentation, and may accept the attestation for filing. A copy of the attestation and attachments are available for public inspection at the DOL national office.
The employer may use foreign crewmembers for longshore work at the port or
location(s) in the State of Alaska for which the attestation has been accepted in
accordance with USCIS regulations unless the DOL subsequently acts to suspend or
invalidate the attestation. The attestations are valid for one year.
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Process for Filing
- The employer must properly complete and submit to the DOL Form ETA 9033,
Attestation by Employers Using Alien Crewmembers for Longshore Activities in U.S.
Ports, or Form ETA 9033-A, Attestation by Employers Using Alien Crewmembers for
Longshore Activities at Locations in the State of Alaska, respectively, and the
supporting documentation described below. Form ETA 9033 must be filed with the
DOL Office of Foreign Labor Certification (OFLC) at least 14 days prior to the date of need, unless the
employer claims and can document an unanticipated emergency. Form ETA 9033-A must
be filed with the DOL Office of Foreign Labor Certification at least 30 days prior to the date of need,
unless the employer could not have reasonably anticipated the need to file an
attestation for the particular location at that time.
- Under the prevailing practice exception, the employer attests that during the
12-month period preceding the filing of the attestation it has been the prevailing
practice for a particular activity of longshore work to be performed by alien
crewmembers. An employer is required to establish that over fifty percent
of the vessels docking at the port used alien crewmembers to perform the
activity, or that alien crewmembers made up over fifty percent of the workers
in the port who engaged in the activity. Under the Alaska exception, the employer
attests that before using alien crewmembers to perform the activity specified in the
attestation, the employer will make a bona fide request for, and employ U.S. longshore
workers who are qualified and available in sufficient numbers from contract stevedoring
companies, labor organizations recognized as exclusive bargaining representatives of
U.S. longshore workers, and private dock operators.
- Under the prevailing practice exception, the employer attests that there is not
a strike or lockout in the course of a labor dispute, that it will not use alien
crewmembers to perform any longshore activity during the attestation's validity,
and that the employment of alien crewmembers is not intended or designed to
influence an election for a bargaining representative for longshore workers at
the port. Under the Alaska exception, the employer merely attests that the use
of alien crewmembers is not intended or designed to influence an election for a
bargaining representative for longshore workers at the port.
- Lastly, the employer attests that notice of filing has been provided to the appropriate
parties. Under the prevailing practice exception, notice is to be provided
to the bargaining representative of the longshore workers in the local port
or; if there is no such bargaining representative, notice has been provided to
the port authority and to longshore workers employed at the port by posting it in
conspicuous locations. Under the Alaska exception, notice is to be provided to
labor organizations recognized as exclusive bargaining representatives of U.S.
longshore workers, contract stevedoring companies which employ U.S. longshore
workers at the particular location(s), and to operators of private docks at which
longshore activity will occur.
- DOL reviews the completed Form ETA 9033, or Form ETA 9033-A,
as appropriate, and the required supporting documentation, to assure that it is signed, completed,
contains no obvious inaccuracies, and is consistent with the documentation submitted
in support of the attestation.
- If the attestation is properly filled out, includes the required
supporting documentation, submitted in a timely fashion, and does not fall within one
of the exception categories set forth in the regulations, DOL accepts the attestation for filing,
notifies the USCIS in writing of the filing, and returns a certified copy of the
attestation. The employer may then utilize alien crewmembers for the longshore
work at the location(s) cited in the attestation in accordance with the CFR, Subpart F of Part 655 and with
USCIS regulations.
- If the attestation is not properly filled out, does
not include the required supporting documentation, and/or does fall within one of the categories
set forth in the regulations, such as where the Administrator of the
Wage and Hour Division of the Employment Standards Administration (ESA) has determined that the
employer misrepresented or failed to comply with the terms of a previously filed
attestation, DOL returns the attestation to the employer with a written notification informing
the employer of the reasons the attestation was not accepted for filing.
If an attestation was not accepted, the employer may correct the deficiencies contained
in the attestation and resubmit it to the DOL Office of Foreign Labor Certification. If
an attestation was not accepted because of a finding of misrepresentation, failure to
comply with any penalty, sanction, or other remedy determined through an
investigation by the Administrator of the Wage and Hour Division of the ESA,
or some other adverse enforcement determination by that agency, the lack of acceptance
is the final decision of the Secretary of Labor and cannot be appealed.