8 U.S.C. § 1288 — Limitations on performance of longshore work by alien crewmen

(a) General rule. For section 1101(a)(15)(D)(i), “normal operation and service^* on board a vessel” does not include any longshore work defined in subsection (b), unless subsection (c), (d), or (e) allows it. This section does not define “normal operation and service.”

(b) “Longshore work” defined. (1) “Longshore work” means work in the United States or its coastal waters involving loading or unloading cargo, operating cargo-related equipment whether or not part of the vessel, or handling mooring lines on a dock when the vessel is secured or released. (2) It does not include loading or unloading cargo for which the Secretary of Transportation has issued regulations under the listed laws governing the cargo’s handling or storage; vessel staffing and the duties, qualifications, and training of its officers and crew; or reducing or eliminating discharges during ballasting, tank cleaning, or handling the cargo. (3) This section does not change what “longshore work” means for any other law, collective bargaining agreement, or international agreement. This section does not define that term for those other purposes.

(c) Prevailing practice exception. (1) The rule in subsection (a) does not apply to a particular longshore activity at a local port if either: (A) one or more port collective bargaining agreements cover at least 30 percent of the people doing longshore work and each agreement allows alien^* crewmen to do the activity; or (B) no such agreement covers at least 30 percent, and the alien crewmen’s employer, or its designated agent or representative, files an attestation with the Secretary of Labor at least 14 days before the activity, or later only when an unforeseen emergency requires it and no later than the activity date. The attestation must show that the port’s prevailing practice permits the activity, that using alien crewmen is not during a strike or lockout in a labor dispute and is not meant to influence an election of a bargaining representative, and that the owner, agent, consignee, master, or commanding officer gave notice to the port’s longshore bargaining representative or, if there is none, to longshore workers employed there. For an automated self-unloading conveyor belt or vacuum system, an attestation is required only if the Secretary finds, based on more likely than not evidence submitted by any interested person, that the activity is not permitted under the prevailing practice described above. (2) Unless paragraph (4) applies, an attestation expires one year after filing. It covers aliens arriving during that year if the owner, agent, consignee, master, or commanding officer states on each list required by section 1281 that the conditions continue to be met. (3) One list may satisfy this subsection for more than one alien crewman^*. (4)(A) The Secretary of Labor must timely compile and make available for public inspection in Washington, D.C., a list of owners, agents, consignees, masters, and commanding officers who filed lists for section 1101(a)(15)(D)(i) nonimmigrants covered by an attestation under paragraph (1) or subsection (d)(1). For each, the Secretary must make available the attestation, its supporting documents, and each list filed by that entity. (B) The Secretary must create a process to receive, investigate, and decide complaints that an entity failed to meet attested conditions, lied about an important fact in an attestation, or, for the conveyor-belt or vacuum-system issue, that the activity is not covered by paragraph (1)(B)(i). An aggrieved person or organization^* may complain, including a bargaining representative, an association the Secretary considers appropriate, or another aggrieved party defined by regulation. The Secretary must promptly investigate when there is reasonable cause to believe one of those things occurred. (C) If there is reasonable cause to investigate an attestation, a complaining party may ask that the attested activities stop during the hearing process. The employer receives notice and has 14 days to respond. If the Secretary initially finds that the complaint is supported by more likely than not evidence, the employer must immediately stop the activities until the process ends. For a complaint about the conveyor-belt or vacuum-system issue, the same rule applies, except the employer may avoid the stop order by filing the required attestation. (D) The complaint process must decide within 180 days after filing, or later for good cause, whether there is a basis for a finding under subparagraph (E). The Secretary must notify interested parties and provide a hearing within 60 days after that decision. (E) After notice and a hearing, if the Secretary finds that an entity failed an attested condition or lied about an important fact, the Secretary must notify the Attorney General^* and may impose appropriate administrative remedies, including a civil penalty of up to $5,000 for each alien crewman doing unauthorized longshore work. The Attorney General then must bar vessels owned or chartered by the entity from entering any United States port for up to one year. If the Secretary finds that the conveyor-belt or vacuum-system activity is not covered by paragraph (1)(B)(i), the Secretary must notify the Attorney General, and the employer must thereafter file an attestation for that activity. (F) A finding that alien crewmen may not perform an activity under a port’s prevailing practice bars filing another attestation about that activity at that port for one year. (5) Except as subsection (d)(5) says, this subsection does not apply to longshore work in Alaska.

(d) State^* of Alaska exception. (1) Subsection (a) does not apply to a particular longshore activity at a particular Alaska location if the employer files an attestation with the Secretary of Labor at least 30 days before the first performance, or up to 24 hours before it if the employer shows the need could not reasonably have been anticipated. The attestation must show: (A) the employer will make a genuine request for qualified United States longshore workers available in sufficient numbers from the parties receiving notice under (D)(ii) and (iii). If two contract stevedoring companies have a joint agreement with one labor organization under (D)(i), the employer may request workers from only one. A private-dock operator may be asked only for work at that dock and only if it meets section 932 of title 33; (B) the employer will hire all qualified, sufficiently numerous United States workers who are needed and made available; (C) using alien crewmen is not meant to influence an election of an Alaska bargaining representative; and (D) the employer notified (i) recognized exclusive bargaining representatives under the National Labor Relations Act that make workers available or plan to make them available at the location, (ii) contract stevedoring companies that employ or plan to employ United States workers there, and (iii) private-dock operators where the employer will use longshore workers. (2) While the attestation is valid, an employer seeking to use alien crewmen must genuinely request and hire United States workers before using alien crewmen, unless a notified party says in writing that it will not make workers available. If that party later says in writing that it is ready to provide qualified workers in sufficient numbers, the employer’s duties toward that party begin 60 days later. (3) The employer cannot be required to hire fewer than a full work unit of United States longshore workers needed to perform the longshore activity. The employer also cannot be required to provide overnight accommodations or transportation, except as the transportation conditions below allow. Transportation must be provided only when surface transportation exists, is safe, takes no more than 30 minutes each way, and covers no more than 5 miles from the embarkation point. At Wide Bay and Klawock/Craig, the limits are 45 minutes and 7 1/2 miles unless the responding party agrees to the shorter limits. (4) Subject to subsection (c)(4)(A)-(D), an Alaska attestation expires one year after the date the employer says the work will begin and covers arriving aliens during that year if each section 1281 list states the conditions continue. (5) Except as subparagraph (B) says, subsection (c)(3) and subsection (c)(4)(A)-(E) apply. Alaska alien-crew work using an automated self-unloading conveyor belt or vacuum system is governed by subsection (c). (6) “Contract stevedoring companies” means Alaska-licensed stevedoring companies meeting section 932 of title 33. “Employer” includes its designated agent or representative. “Qualified” and “available in sufficient numbers” are defined by Alaska industry standards, including safety concerns.

(e) Reciprocity exception. (1) Subject to the Secretary of State’s list under paragraph (2), the Attorney General must allow alien crewmen to perform longshore work if the vessel is registered in a country that does not prohibit the activity by United States vessel crewmen by law, regulation, or practice, and nationals of countries that do not so prohibit it own a majority interest in the vessel. (2) Under 5 U.S.C. § 553, the Secretary of State must compile and update each year a list, by activity, of countries where the activity by United States vessel crewmen is prohibited by law, regulation, or practice. The Secretary had to publish proposed-rulemaking notice by February 27, 1991, and first establish the list by May 28, 1991. (3) “In practice” means an activity normally performed in that country during the one-year period before the vessel arrives in the United States or its coastal waters.