Crewmembers (D-1 Visas)

Sections 101(a)(15)(D)(i) and 258 of the Immigration and Nationality Act (INA) (8 USC §1101 et seq.; 20 CFR Part 655, Subparts F and G)

Who is Covered

These provisions apply to vessels/employers seeking to employ their nonimmigrant aliens as crewmembers to perform longshore work in U.S. ports under D-1 visas.

Basic Provisions/Requirements

The Immigration and Nationality Act (INA) prohibits alien crewmembers (D-visa holders) from performing longshore work in U.S. ports unless one of the following provisions applies:

• A reciprocity agreement between the U.S. and the vessel/employer's country is in place;
• A port's collective bargaining agreement(s) allows the employment of D-visa workers to perform longshore work;
• The vessel/employer filed an attestation (Form ETA 9033) with the Department of Labor under the prevailing practice exception;
• The vessel/employer filed an attestation (Form ETA 9033-A) with the Department of Labor under the State of Alaska exception; or
• The longshore activity is performed with the use of an automated vessel.

The Employment and Training Administration (ETA) (www.doleta.gov) administers the attestation process under the prevailing practice and State of Alaska exceptions. The Wage and Hour Division of the Employment Standards Administration investigates and resolves complaints that the employer failed to meet conditions to which it attested, misrepresented a material fact in an attestation, or failed to use the automated vessel exception properly. Complaints about such matters should be filed with the local Wage and Hour Division offices.

Employee Rights

U.S. workers have the right not to have foreign crewmembers on D-visas perform longshore work during a strike or lockout in the course of a labor dispute. Also, the performance of the longshore work by foreign crewmembers must not be intended to influence an election of a bargaining representative for workers in the local port. The employer must provide notice of the filing of an attestation to longshore workers employed at the local port. Any aggrieved party or organization (including bargaining representatives in the local port) may file a complaint alleging a misrepresentation on an attestation or a failure to comply with the terms thereof.

Under the State of Alaska exception, an employer must make a bona fide request for and employ U.S. workers who are qualified and available in sufficient numbers to perform the longshore work. Only where sufficient U.S. longshore workers are unavailable may the employer use alien crewmembers to perform the work.

U.S. workers have a right to protection against discrimination. No employer may intimidate, threaten, blacklist, discharge, or in any other manner discriminate against any person for disclosing violations of the regulations or for cooperating in an official investigation of the employer's compliance.

Compliance Assistance Available

General information on the filing of attestations under the prevailing practice and State of Alaska exceptions may be accessed on the D-1 Crewmembers Certification page (www.ows.doleta.gov/foreign/d-1.asp) of the ETA Web site (www.doleta.gov). More detailed information may be obtained by contacting the national office of the Employment and Training Administration (www.doleta.gov or 1-877-US-2JOBS) and the Wage and Hour Division (www.wagehour.dol.gov or 1-866-4USWAGE).

Penalties/Sanctions

When violations are found, the Wage and Hour Division may assess a civil money penalty not to exceed $5,000 per crewmember employed in violation of the D-1 visa requirement and other appropriate remedies. Any interested party may request a hearing on the Wage and Hour Administrator's determination before an Administrative Law Judge, and any interested party may petition the Secretary of Labor to review the Administrative Law Judge's decision.

During an investigation, the Wage and Hour Division may enter a "cease and desist" order against the employer. When a "cease and desist" order has been entered, an employer may not use the services of D-visa crewmembers. Vessels owned by an employer found in violation of this program will not be allowed to enter U.S. ports and may be precluded from future access to the D-1 program for up to one year.

Relation to State, Local, and Other Federal Laws

Various other laws, such as the Fair Labor Standards Act, may apply to these workers.

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