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[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
  January 24, 2002 and December 19, 2002]
[CITE: 8USC1288]

 
                     TITLE 8--ALIENS AND NATIONALITY
 
                 CHAPTER 12--IMMIGRATION AND NATIONALITY
 
                       SUBCHAPTER II--IMMIGRATION
 
          Part VI--Special Provisions Relating to Alien Crewmen
 
Sec. 1288. Limitations on performance of longshore work by alien 
        crewmen
        

(a) In general

    For purposes of section 1101(a)(15)(D)(i) of this title, the term 
``normal operation and service on board a vessel'' does not include any 
activity that is longshore work (as defined in subsection (b) of this 
section), except as provided under subsection (c), (d), or (e) of this 
section.

(b) ``Longshore work'' defined

                           (1) In general

        In this section, except as provided in paragraph (2), the term 
    ``longshore work'' means any activity relating to the loading or 
    unloading of cargo, the operation of cargo-related equipment 
    (whether or not integral to the vessel), and the handling of mooring 
    lines on the dock when the vessel is made fast or let go, in the 
    United States or the coastal waters thereof.

        (2) Exception for safety and environmental protection

        The term ``longshore work'' does not include the loading or 
    unloading of any cargo for which the Secretary of Transportation 
    has, under the authority contained in chapter 37 of title 46 
    (relating to Carriage of Liquid Bulk Dangerous Cargoes), section 
    1321 of title 33, section 4106 of the Oil Pollution Act of 1990, or 
    section 5103(b), 5104, 5106, 5107, or 5110 of title 49 prescribed 
    regulations which govern--
            (A) the handling or stowage of such cargo,
            (B) the manning of vessels and the duties, qualifications, 
        and training of the officers and crew of vessels carrying such 
        cargo, and
            (C) the reduction or elimination of discharge during 
        ballasting, tank cleaning, handling of such cargo.

                          (3) Construction

        Nothing in this section shall be construed as broadening, 
    limiting, or otherwise modifying the meaning or scope of longshore 
    work for purposes of any other law, collective bargaining agreement, 
    or international agreement.

(c) Prevailing practice exception

    (1) Subsection (a) of this section shall not apply to a particular 
activity of longshore work in and about a local port if--
        (A)(i) there is in effect in the local port one or more 
    collective bargaining agreements each covering at least 30 percent 
    of the number of individuals employed in performing longshore work 
    and (ii) each such agreement (covering such percentage of longshore 
    workers) permits the activity to be performed by alien crewmen under 
    the terms of such agreement; or
        (B) there is no collective bargaining agreement in effect in the 
    local port covering at least 30 percent of the number of individuals 
    employed in performing longshore work, and an employer of alien 
    crewmen (or the employer's designated agent or representative) has 
    filed with the Secretary of Labor at least 14 days before the date 
    of performance of the activity (or later, if necessary due to an 
    unanticipated emergency, but not later than the date of performance 
    of the activity) an attestation setting forth facts and evidence to 
    show that--
            (i) the performance of the activity by alien crewmen is 
        permitted under the prevailing practice of the particular port 
        as of the date of filing of the attestation and that the use of 
        alien crewmen for such activity--
                (I) is not during a strike or lockout in the course of a 
            labor dispute, and
                (II) is not intended or designed to influence an 
            election of a bargaining representative for workers in the 
            local port; and

            (ii) notice of the attestation has been provided by the 
        owner, agent, consignee, master, or commanding officer to the 
        bargaining representative of longshore workers in the local 
        port, or, where there is no such bargaining representative, 
        notice of the attestation has been provided to longshore workers 
        employed at the local port.

In applying subparagraph (B) in the case of a particular activity of 
longshore work consisting of the use of an automated self-unloading 
conveyor belt or vacuum-actuated system on a vessel, the attestation 
shall be required to be filed only if the Secretary of Labor finds, 
based on a preponderance of the evidence which may be submitted by any 
interested party, that the performance of such particular activity is 
not described in clause (i) of such subparagraph.
    (2) Subject to paragraph (4), an attestation under paragraph (1) 
shall--
        (A) expire at the end of the 1-year period beginning on the date 
    of its filing with the Secretary of Labor, and
        (B) apply to aliens arriving in the United States during such 1-
    year period if the owner, agent, consignee, master, or commanding 
    officer states in each list under section 1281 of this title that it 
    continues to comply with the conditions in the attestation.

    (3) An owner, agent, consignee, master, or commanding officer may 
meet the requirements under this subsection with respect to more than 
one alien crewman in a single list.
    (4)(A) The Secretary of Labor shall compile and make available for 
public examination in a timely manner in Washington, D.C., a list 
identifying owners, agents, consignees, masters, or commanding officers 
which have filed lists for nonimmigrants described in section 
1101(a)(15)(D)(i) of this title with respect to whom an attestation 
under paragraph (1) or subsection (d)(1) of this section is made and, 
for each such entity, a copy of the entity's attestation under paragraph 
(1) or subsection (d)(1) of this section (and accompanying 
documentation) and each such list filed by the entity.
    (B)(i) The Secretary of Labor shall establish a process for the 
receipt, investigation, and disposition of complaints respecting an 
entity's failure to meet conditions attested to, an entity's 
misrepresentation of a material fact in an attestation, or, in the case 
described in the last sentence of paragraph (1), whether the performance 
of the particular activity is or is not described in paragraph 
(1)(B)(i).
    (ii) Complaints may be filed by any aggrieved person or organization 
(including bargaining representatives, associations deemed appropriate 
by the Secretary, and other aggrieved parties as determined under 
regulations of the Secretary).
    (iii) The Secretary shall promptly conduct an investigation under 
this subparagraph if there is reasonable cause to believe that an entity 
fails to meet conditions attested to, an entity has misrepresented a 
material fact in the attestation, or, in the case described in the last 
sentence of paragraph (1), the performance of the particular activity is 
not described in paragraph (1)(B)(i).
    (C)(i) If the Secretary determines that reasonable cause exists to 
conduct an investigation with respect to an attestation, a complaining 
party may request that the activities attested to by the employer cease 
during the hearing process described in subparagraph (D). If such a 
request is made, the attesting employer shall be issued notice of such 
request and shall respond within 14 days to the notice. If the Secretary 
makes an initial determination that the complaining party's position is 
supported by a preponderance of the evidence submitted, the Secretary 
shall require immediately that the employer cease and desist from such 
activities until completion of the process described in subparagraph 
(D).
    (ii) If the Secretary determines that reasonable cause exists to 
conduct an investigation with respect to a matter under the last 
sentence of paragraph (1), a complaining party may request that the 
activities of the employer cease during the hearing process described in 
subparagraph (D) unless the employer files with the Secretary of Labor 
an attestation under paragraph (1). If such a request is made, the 
employer shall be issued notice of such request and shall respond within 
14 days to the notice. If the Secretary makes an initial determination 
that the complaining party's position is supported by a preponderance of 
the evidence submitted, the Secretary shall require immediately that the 
employer cease and desist from such activities until completion of the 
process described in subparagraph (D) unless the employer files with the 
Secretary of Labor an attestation under paragraph (1).
    (D) Under the process established under subparagraph (B), the 
Secretary shall provide, within 180 days after the date a complaint is 
filed (or later for good cause shown), for a determination as to whether 
or not a basis exists to make a finding described in subparagraph (E). 
The Secretary shall provide notice of such determination to the 
interested parties and an opportunity for a hearing on the complaint 
within 60 days of the date of the determination.
    (E)(i) If the Secretary of Labor finds, after notice and opportunity 
for a hearing, that an entity has failed to meet a condition attested to 
or has made a misrepresentation of material fact in the attestation, the 
Secretary shall notify the Attorney General of such finding and may, in 
addition, impose such other administrative remedies (including civil 
monetary penalties in an amount not to exceed $5,000 for each alien 
crewman performing unauthorized longshore work) as the Secretary 
determines to be appropriate. Upon receipt of such notice, the Attorney 
General shall not permit the vessels owned or chartered by such entity 
to enter any port of the United States during a period of up to 1 year.
    (ii) If the Secretary of Labor finds, after notice and opportunity 
for a hearing, that, in the case described in the last sentence of 
paragraph (1), the performance of the particular activity is not 
described in subparagraph (B)(i), the Secretary shall notify the 
Attorney General of such finding and, thereafter, the attestation 
described in paragraph (1) shall be required of the employer for the 
performance of the particular activity.
    (F) A finding by the Secretary of Labor under this paragraph that 
the performance of an activity by alien crewmen is not permitted under 
the prevailing practice of a local port shall preclude for one year the 
filing of a subsequent attestation concerning such activity in the port 
under paragraph (1).
    (5) Except as provided in paragraph (5) of subsection (d) of this 
section, this subsection shall not apply to longshore work performed in 
the State of Alaska.

(d) State of Alaska exception

    (1) Subsection (a) of this section shall not apply to a particular 
activity of longshore work at a particular location in the State of 
Alaska if an employer of alien crewmen has filed an attestation with the 
Secretary of Labor at least 30 days before the date of the first 
performance of the activity (or anytime up to 24 hours before the first 
performance of the activity, upon a showing that the employer could not 
have reasonably anticipated the need to file an attestation for that 
location at that time) setting forth facts and evidence to show that--
        (A) the employer will make a bona fide request for United States 
    longshore workers who are qualified and available in sufficient 
    numbers to perform the activity at the particular time and location 
    from the parties to whom notice has been provided under clauses (ii) 
    and (iii) of subparagraph (D), except that--
            (i) wherever two or more contract stevedoring companies have 
        signed a joint collective bargaining agreement with a single 
        labor organization described in subparagraph (D)(i), the 
        employer may request longshore workers from only one of such 
        contract stevedoring companies, and
            (ii) a request for longshore workers to an operator of a 
        private dock may be made only for longshore work to be performed 
        at that dock and only if the operator meets the requirements of 
        section 932 of title 33;

        (B) the employer will employ all those United States longshore 
    workers made available in response to the request made pursuant to 
    subparagraph (A) who are qualified and available in sufficient 
    numbers and who are needed to perform the longshore activity at the 
    particular time and location;
        (C) the use of alien crewmembers for such activity is not 
    intended or designed to influence an election of a bargaining 
    representative for workers in the State of Alaska; and
        (D) notice of the attestation has been provided by the employer 
    to--
            (i) labor organizations which have been recognized as 
        exclusive bargaining representatives of United States longshore 
        workers within the meaning of the National Labor Relations Act 
        [29 U.S.C. 151 et seq.] and which make available or intend to 
        make available workers to the particular location where the 
        longshore work is to be performed,
            (ii) contract stevedoring companies which employ or intend 
        to employ United States longshore workers at that location, and
            (iii) operators of private docks at which the employer will 
        use longshore workers.

    (2)(A) An employer filing an attestation under paragraph (1) who 
seeks to use alien crewmen to perform longshore work shall be 
responsible while at \1\ the attestation is valid to make bona fide 
requests for United States longshore workers under paragraph (1)(A) and 
to employ United States longshore workers, as provided in paragraph 
(1)(B), before using alien crewmen to perform the activity or activities 
specified in the attestation, except that an employer shall not be 
required to request longshore workers from a party if that party has 
notified the employer in writing that it does not intend to make 
available United States longshore workers to the location at which the 
longshore work is to be performed.
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    \1\ So in original. The word ``at'' probably should not appear.
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    (B) If a party that has provided such notice subsequently notifies 
the employer in writing that it is prepared to make available United 
States longshore workers who are qualified and available in sufficient 
numbers to perform the longshore activity to the location at which the 
longshore work is to be performed, then the employer's obligations to 
that party under subparagraphs (A) and (B) of paragraph (1) shall begin 
60 days following the issuance of such notice.
    (3)(A) In no case shall an employer filing an attestation be 
required--
        (i) to hire less than a full work unit of United States 
    longshore workers needed to perform the longshore activity;
        (ii) to provide overnight accommodations for the longshore 
    workers while employed; or
        (iii) to provide transportation to the place of work, except 
    where--
            (I) surface transportation is available;
            (II) such transportation may be safely accomplished;
            (III) travel time to the vessel does not exceed one-half 
        hour each way; and
            (IV) travel distance to the vessel from the point of 
        embarkation does not exceed 5 miles.

    (B) In the cases of Wide Bay, Alaska, and Klawock/Craig, Alaska, the 
travel times and travel distances specified in subclauses (III) and (IV) 
of subparagraph (A)(iii) shall be extended to 45 minutes and 7\1/2\ 
miles, respectively, unless the party responding to the request for 
longshore workers agrees to the lesser time and distance limitations 
specified in those subclauses.
    (4) Subject to subparagraphs (A) through (D) of subsection (c)(4) of 
this section, attestations filed under paragraph (1) of this subsection 
shall--
        (A) expire at the end of the 1-year period beginning on the date 
    the employer anticipates the longshore work to begin, as specified 
    in the attestation filed with the Secretary of Labor, and
        (B) apply to aliens arriving in the United States during such 1-
    year period if the owner, agent, consignee, master, or commanding 
    officer states in each list under section 1281 of this title that it 
    continues to comply with the conditions in the attestation.

    (5)(A) Except as otherwise provided by subparagraph (B), subsection 
(c)(3) of this section and subparagraphs (A) through (E) of subsection 
(c)(4) of this section shall apply to attestations filed under this 
subsection.
    (B) The use of alien crewmen to perform longshore work in Alaska 
consisting of the use of an automated self-unloading conveyor belt or 
vacuum-actuated system on a vessel shall be governed by the provisions 
of subsection (c) of this section.
    (6) For purposes of this subsection--
        (A) the term ``contract stevedoring companies'' means those 
    stevedoring companies licensed to do business in the State of Alaska 
    that meet the requirements of section 932 of title 33;
        (B) the term ``employer'' includes any agent or representative 
    designated by the employer; and
        (C) the terms ``qualified'' and ``available in sufficient 
    numbers'' shall be defined by reference to industry standards in the 
    State of Alaska, including safety considerations.

(e) Reciprocity exception

                           (1) In general

        Subject to the determination of the Secretary of State pursuant 
    to paragraph (2), the Attorney General shall permit an alien crewman 
    to perform an activity constituting longshore work if--
            (A) the vessel is registered in a country that by law, 
        regulation, or in practice does not prohibit such activity by 
        crewmembers aboard United States vessels; and
            (B) nationals of a country (or countries) which by law, 
        regulation, or in practice does not prohibit such activity by 
        crewmembers aboard United States vessels hold a majority of the 
        ownership interest in the vessel.

                      (2) Establishment of list

        The Secretary of State shall, in accordance with section 553 of 
    title 5, compile and annually maintain a list, of longshore work by 
    particular activity, of countries where performance of such a 
    particular activity by crewmembers aboard United States vessels is 
    prohibited by law, regulation, or in practice in the country. By not 
    later than 90 days after November 29, 1990, the Secretary shall 
    publish a notice of proposed rulemaking to establish such list. The 
    Secretary shall first establish such list by not later than 180 days 
    after November 29, 1990.

                     (3) ``In practice'' defined

        For purposes of this subsection, the term ``in practice'' refers 
    to an activity normally performed in such country during the one-
    year period preceding the arrival of such vessel into the United 
    States or coastal waters thereof.

(June 27, 1952, ch. 477, title II, ch. 6, Sec. 258, as added Pub. L. 
101-649, title II, Sec. 203(a)(1), Nov. 29, 1990, 104 Stat. 5015; 
amended Pub. L. 102-232, title III, Sec. 303(a)(4), Dec. 12, 1991, 105 
Stat. 1747; Pub. L. 103-198, Sec. 8(a), (b), Dec. 17, 1993, 107 Stat. 
2313, 2315; Pub. L. 103-206, title III, Sec. 323(a), (b), Dec. 20, 1993, 
107 Stat. 2428, 2430; Pub. L. 103-416, title II, Sec. 219(f), (gg), Oct. 
25, 1994, 108 Stat. 4317, 4319; Pub. L. 104-208, div. C, title VI, 
Sec. 671(e)(4)(B), Sept. 30, 1996, 110 Stat. 3009-723.)

                       References in Text

    Section 4106 of the Oil Pollution Act of 1990, referred to in 
subsec. (b)(2), is section 4106 of Pub. L. 101-380, title IV, Aug. 18, 
1990, 104 Stat. 513, which amended section 1228 of Title 33, Navigation 
and Navigable Waters, and sections 6101 and 9101 of Title 46, Shipping.
    The National Labor Relations Act, referred to in subsec. 
(d)(1)(D)(i), is act July 5, 1935, ch. 372, 49 Stat. 452, as amended, 
which is classified generally to subchapter II (Sec. 151 et seq.) of 
chapter 7 of Title 29, Labor. For complete classification of this Act to 
the Code, see section 167 of Title 29 and Tables.


                               Amendments

    1996--Subsec. (b)(2). Pub. L. 104-208 substituted ``section 5103(b), 
5104, 5106, 5107, or 5110 of title 49'' for ``section 105 or 106 of the 
Hazardous Materials Transportation Act (49 U.S.C. App. 1804, 1805)''.
    1994--Subsecs. (a), (c)(4)(A), (5). Pub. L. 103-416, Sec. 219(gg), 
repealed Pub. L. 103-198, Sec. 8(b), which had made amendments identical 
to those made by Pub. L. 103-206, Sec. 323(b). See 1993 Amendment note 
below.
    Subsec. (d). Pub. L. 103-416, Sec. 219(gg), repealed Pub. L. 103-
198, Sec. 8(a), which had made an amendment substantially identical to 
that made by Pub. L. 103-206, Sec. 323(a). See 1993 Amendment note 
below.
    Subsec. (d)(3)(B). Pub. L. 103-416, Sec. 219(f), substituted 
``subparagraph (A)(iii)'' for ``subparagraph (A)''.
    Subsec. (e). Pub. L. 103-416, Sec. 219(gg), repealed Pub. L. 103-
198, Sec. 8(a), which had made an amendment substantially identical to 
that made by Pub. L. 103-206, Sec. 323(a). See 1993 Amendment note 
below.
    1993--Subsec. (a). Pub. L. 103-206, Sec. 323(b)(1), substituted 
``subsection (c), (d), or (e) of this section'' for ``subsection (c) of 
this section or subsection (d) of this section''. Pub. L. 103-198, 
Sec. 8(b)(1), which amended subsec. (a) identically, was repealed by 
Pub. L. 103-416, Sec. 219(gg).
    Subsec. (c)(4)(A). Pub. L. 103-206, Sec. 323(b)(2), inserted ``or 
subsection (d)(1) of this section'' after ``paragraph (1)'' in two 
places. Pub. L. 103-198, Sec. 8(b)(2), which amended subpar. (A) 
identically, was repealed by Pub. L. 103-416, Sec. 219(gg).
    Subsec. (c)(5). Pub. L. 103-206, Sec. 323(b)(3), added par. (5). 
Pub. L. 103-198, Sec. 8(b)(3), which amended subsec. (c) identically, 
was repealed by Pub. L. 103-416, Sec. 219(gg).
    Subsecs. (d), (e). Pub. L. 103-206, Sec. 323(a), added subsec. (d) 
and redesignated former subsec. (d) as (e). Pub. L. 103-198, Sec. 8(a), 
which made substantially identical amendments to this section, was 
repealed by Pub. L. 103-416, Sec. 219(gg).
    1991--Subsec. (c)(2)(B). Pub. L. 102-232 substituted ``each list'' 
for ``each such list''.


                    Effective Date of 1994 Amendment

    Amendment by Pub. L. 103-416 effective as if included in the 
enactment of the Immigration Act of 1990, Pub. L. 101-649, see section 
219(dd) of Pub. L. 103-416, set out as a note under section 1101 of this 
title.


                    Effective Date of 1991 Amendment

    Amendment by Pub. L. 102-232 effective as if included in the 
enactment of the Immigration Act of 1990, Pub. L. 101-649, see section 
310(1) of Pub. L. 102-232, set out as a note under section 1101 of this 
title.


                             Effective Date

    Section applicable to services performed on or after 180 days after 
Nov. 29, 1990, see section 203(d) of Pub. L. 101-649, set out as an 
Effective Date of 1990 Amendment note under section 1101 of this title.


                               Regulations

    Section 323(c) of Pub. L. 103-206 provided that:
    ``(1) The Secretary of Labor shall prescribe such regulations as may 
be necessary to carry out this section [amending this section].
    ``(2) Attestations filed pursuant to section 258(c) (8 U.S.C. 
1288(c)) with the Secretary of Labor before the date of enactment of 
this Act [Dec. 20, 1993] shall remain valid until 60 days after the date 
of issuance of final regulations by the Secretary under this section.''
    Similar provisions were contained in Pub. L. 103-198, Sec. 8(c), 
Dec. 17, 1993, 107 Stat. 2315, prior to repeal by Pub. L. 103-416, title 
II, Sec. 219(gg), Oct. 25, 1994, 108 Stat. 4319.

  Abolition of Immigration and Naturalization Service and Transfer of 
                                Functions

    For abolition of Immigration and Naturalization Service, transfer of 
functions, and treatment of related references, see note set out under 
section 1551 of this title.


             Inapplicability of Amendment by Pub. L. 101-649

    Section 203(a)(2) of Pub. L. 101-649 provided that: ``This section 
[enacting this section, amending section 1101 of this title, and 
enacting provisions set out as a note under section 1101 of this title] 
does not affect the performance of longshore work in the United States 
by citizens or nationals of the United States.''

                  Section Referred to in Other Sections

    This section is referred to in sections 1101, 1281 of this title.