Department of Labor: 67 FED REG

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Monday,

May 6, 2002

Part V

Department of LaborEmployment and Training Administration

20 CFR Parts 655 and 656

Labor Certification for the PermanentEmployment of Aliens in the UnitedStates; Implementation of New System;Proposed Rule

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30466 Federal Register / Vol. 67, No. 87 / Monday, May 6, 2002 / Proposed Rules

DEPARTMENT OF LABOR

Employment and TrainingAdministration

20 CFR Parts 655 and 656

RIN 1205AA66

Labor Certification for the PermanentEmployment of Aliens in the UnitedStates; Implementation of New System

AGENCIES: Wage and Hour Division,Employment Standards Administration,and Employment and TrainingAdministration, Labor.

ACTION: Proposed rule; request forcomments.

SUMMARY: The Department of Labor isproposing to amend its regulationsgoverning the filing and processing oflabor certification applications for thepermanent employment of aliens in the

United States to implement a newsystem for filing and processing suchapplications. The proposed rule wouldalso amend the regulations governingthe employers wage obligation underthe H1B program. The new systemwould require employers to conductrecruitment before filing theirapplications directly with an ETAapplication processing center onapplication forms designed forautomated screening and processing.State Workforce Agencies (SWAs)would provide prevailing wagedeterminations to employers. Employerswould be required to place a job orderwith the SWA which would beprocessed the same as any other joborder placed by employers. SWAswould no longer be the intake point forsubmission of applications and wouldnot be involved in processing theapplications as they are now in thepresent system. The combination ofprefiling recruitment, automatedprocessing of applications, andelimination of the role of the SWAs inthe processing of applications will yielda large reduction in the average timeneeded to process labor certificationapplications and are expected to

eliminate the need to periodicallyinstitute special, resource intensiveefforts to reduce backlogs which have

been a recurring problem.

DATES: Interested persons are invited tosubmit written comments on theproposed rule on or before July 5, 2002.

ADDRESSES: Submit written commentsto the Assistant Secretary forEmployment and Training, U.S.Department of Labor, 200 ConstitutionAvenue, NW., Room C4318,Washington, DC 20210, Attention: Dale

Ziegler, Chief, Division of Foreign LaborCertifications.

FOR FURTHER INFORMATION CONTACT:Denis M. Gruskin, Senior Specialist,Division of Foreign Labor Certifications,Employment and TrainingAdministration, 200 ConstitutionAvenue, NW., Room C4318,Washington, DC 20210. Telephone:(202) 6932953 (this is not a toll freenumber).

SUPPLEMENTARY INFORMATION:

I. Background

The process for obtaining a permanentlabor certification has been criticized as

being complicated, time consuming andrequiring the expenditure ofconsiderable resources by employers,SWAs and the Federal Government. Itcan take up to two years or more tocomplete the process for applicationsthat are filed under the basic processand do not utilize the more streamlined

reduction in recruitment (RIR) process.The reduction in recruitment processallows employers that request RIRprocessing to conduct recruitment

before filing their applications and theseapplications are evaluated on the basisof such recruitment.

The redesigned system we envisionwould require employers to conductrecruitment before filing theirapplications. Employers would berequired to conduct both mandatory andalternative recruitment steps. Thealternative steps would be chosen by theemployer from a list of additional

recruitment steps in the regulations. Theemployer would not be required tosubmit any documentation with itsapplication, but would be expected tohave assembled supportingdocumentation specified in theregulations and would be required toprovide it in the event its application isselected for audit.

Employers would be required tosubmit their applications on formsdesigned for automated processing tominimize manual intervention to anETA application processing center forautomated screening and processing.

After an application has beendetermined to be acceptable for filing,an automated system would review it

based upon various selection criteriathat would allow applications to beidentified for potential audits beforedeterminations could be made. Inaddition, some applications would berandomly selected as a quality controlmeasure for an audit without regard tothe results of the computer analysis.

A complete application would consistof two forms. An Application forPermanent Labor Certification form

(ETA Form 9089) and a Prevailing WageDetermination Request(PWDR) form(ETA Form 9088). The application formwould require the employer to respondto 56 items. The majority of the itemson the application form would consistof attestations which would require theemployer to do no more than checkyes, no, or NA (not applicable) as

a response. These attestations and otherinformation required by the applicationform elicit information similar to thatrequired by the current laborcertification process. For example, theemployer will have to attest to, suchitems as: whether the employerprovided notice of the application to the

bargaining representative or itsemployees; whether the alien

beneficiary gained any of the qualifyingexperience with the employer; whetherthe alien is currently employed by theemployer; whether a foreign languagerequirement is required to perform the

job duties; and whether the U.S.applicants were rejected solely forlawful job related reasons. (The termapplicant is defined at 656.3 as anU.S. worker who is applying for a jobopportunity for which an employer hasfiled an Application for PermanentLabor Certification (ETA Form 9089).The term U.S. Worker is also definedat 656.3.) The wage offered on theapplication form would be required to

be to equal to or greater than theprevailing wage determination entered

by the SWA on the PWDR formdescribed below. Comments arerequested on ETA forms 9088 and 9089

which are published at the end of thisNPRM.

The application form, however,would not require the employer toprovide a job description, or detailed jobrequirements. The job description andjob requirements would be entered onthe PWDR form, which the employerwould be required to submit to the SWAfor a prevailing wage determination.The SWA would enter its prevailingwage determination on the form andreturn it to the employer with itsendorsement. The employer would berequired to submit both forms to an ETA

servicing office for processing and adetermination.The employer would not be required

to provide any supportingdocumentation with its application butwould be required to furnish supportingdocumentation to support theattestations and other informationprovided on the form if the applicationwas selected for an audit. The standardsused in adjudicating applications underthe new system would be substantiallythe same as those used in arriving at adetermination in the current system.



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30467Federal Register / Vol. 67, No. 87 / Monday, May 6, 2002 / Proposed Rules

The determination would still be basedon: whether the employer has met therequirements of the regulations; whetherthere are insufficient workers who areable, willing, qualified and available;and whether the employment of thealien will have an adverse effect on thewages and working conditions of U.S.workers similarly employed.

SWAs would no longer be the intakepoint for submission of applications forpermanent alien employmentcertification and would not be requiredto be the source of recruitment andreferral of U.S. workers as they are inthe present system. The required role ofSWAs in the redesigned permanentlabor certification process would belimited to providing prevailing wagedeterminations (PWD). Employerswould be required to submit a PWDRform to SWAs to obtain a PWD beforefiling their applications with an ETAapplication processing center. The

SWAs would, as they do under thecurrent process, evaluate the particularsof the employers job offer, such as thejob duties and requirements for theposition and the geographic area inwhich the job is located, to arrive at aPWD.

The combination of prefilingrecruitment, automated processing ofapplications, and elimination of theSWAs required role in the recruitmentand referral of U.S. workers would yielda large reduction in the average timeneeded to process labor certificationapplications and would also eliminate

the need to institute special, resourceintensive efforts to reduce backlogswhich have been a recurring problem.

The proposed labor certificationapplication and PWDR have beendesigned to be machine readable ordirectly completed in a web-basedenvironment. Initially, depending uponwhether or not a processing fee isimplemented, applications will be onforms which can be submitted byfacsimile transmission or by mail andwill be subject to an initial acceptabilitycheck to determine whether theapplication can be processed. If a fee for

processing the application is required,all applications will have to besubmitted by mail. (However, asindicated in section IV.E, of thepreamble below, the Department cannotpromulgate and implement a feecharging rule until Congress passes thenecessary authorizing legislation.) In thelong-term, ETA will be exploring thepossibility of further automating theprocess so that applications andPWDRs may be submittedelectronically to an applicationprocessing center whether or not a fee

is required to be submitted with anapplication.

After an application, including thePWDR, has been determined to beacceptable for filing, a computer systemwill review the application based uponvarious selection criteria that will allowmore problematic applications to beidentified for audit. Additionally, we

anticipate that some applications will berandomly selected for an audit withoutregard to the results of the computeranalysis as a quality control measure. Ifan audit has not been triggered by theinformation provided on the applicationor because of a random selection, theapplication will be certified andreturned to the employer. The employermay then submit the certifiedapplication to the Immigration andNaturalization Service (INS) in supportof an employment-based I140 petition.We anticipate that if an application isnot selected for an audit, an employer

will have a computer-generated decisionwithin 21 calendar days of the date theapplication was initially filed.

If an application is selected for anaudit, the employer will be notified andrequired to submit, in a timely manner,documentation specified in theregulations to verify the informationstated in or attested to on theapplication. Upon timely receipt of anemployers audit documentation, theapplication will be distributed to theappropriate ETA regional office where itwill be reviewed by the regionalCertifying Officer.

After an audit has been completed,

the proposed rule provides that theCertifying Officer can certify theapplication; deny the application; ororder supervised recruitment. If theaudit documentation is complete andconsistent with the employersstatements and attestations contained inthe application, the application will becertified and returned to the employer.If the audit documentation isincomplete, is inconsistent with theemployers statements and/orattestations contained in theapplication, or if the application isotherwise deficient in some material

respect, the application will be deniedand a notification of denial with thereasons therefor will be issued to theemployer. If an application is denied,the employer will be able to requestreview of the Certifying Officersdecision by the Board of Alien LaborCertification Appeals (Board orBALCA). Additionally, on anyapplication selected for an audit, theregional Certifying Officer will have theauthority to request additionalinformation before making a finaldetermination or order supervised

recruitment for the employers jobopportunity in any case where questionsarise regarding the adequacy of theemployers test of the labor market.

The supervised recruitment that maybe required by the regional CertifyingOfficer, is similar to the current non-RIRregulatory recruitment scheme underthe current basic process which requires

placement of an advertisement inconjunction with a 30-day job order bythe employer. The recruitment,however, will be supervised by ETAregional offices instead of the SWAs. Atthe completion of the supervisedrecruitment efforts, the employer will berequired to document in a recruitmentreport that such efforts wereunsuccessful, including the lawful, job-related reasons for not hiring any U.S.workers who applied for the position.After a review of the employersdocumentation, the regional CertifyingOfficer will either certify or deny the

application. In all instances in which anapplication is denied, the denialnotification will set forth thedeficiencies upon which the denial is

based. The employer would be able toseek administrative-judicial review of adenial.

II. Statutory Standard

Before the Immigration andNaturalization Service (INS) mayapprove petition requests and theDepartment of State may issue visas andadmit certain immigrant aliens to workpermanently in the United States, theSecretary of Labor must first certify to

the Secretary of State and to theAttorney General that:

(a) There are not sufficient UnitedStates workers who are able, willing,qualified, and available at the time ofthe application for a visa and admissioninto the United States and at the placewhere the alien is to perform the work;and

(b) The employment of the alien willnot adversely affect the wages andworking conditions of similarlyemployed United States workers. (8U.S.C. 1182(a)(5)(A)).

If the Secretary, through ETA,

determines that there are no able,willing, qualified, and available U.S.workers and that employment of thealien will not adversely affect the wagesand working conditions of similarlyemployed U.S. workers, DOL so certifiesto the INS and to the Department ofState, by issuing a permanent alien laborcertification.

If DOL cannot make one or both of theabove findings, the application forpermanent alien employmentcertification is denied. DOL may beunable to make the two required



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findings for one or more reasons,including:

(a) The employer has not adequatelyrecruited U.S. workers for the joboffered to the alien, or has not followedthe proper procedural steps in 20 CFRpart 656.

(b) The employer has not met itsburden of proof under section 291 of the

Immigration and Nationality Act (INAor Act.) (8 U.S.C. 1361), that is, theemployer has not submitted sufficientevidence of its attempts to obtainavailable U.S. workers, and/or theemployer has not submitted sufficientevidence that the wages and workingconditions which the employer isoffering will not adversely affect thewages and working conditions ofsimilarly employed U.S. workers.

III. Current Department of LaborRegulations

The Department of Labor haspromulgated regulations, at 20 CFR part656, governing the labor certificationprocess for the permanent employmentof immigrant aliens in the United States.Part 656 was promulgated under section212(a)(14) of the INA (now at section212(a)(5)(A)). 8 U.S.C. 1182(a)(5)(A).

The regulations at 20 CFR part 656 setforth the factfinding process designed todevelop information sufficient tosupport the granting or denial of apermanent labor certification. Theseregulations describe the nationwidesystem of public State WorkforceAgency offices available to assistemployers in finding available U.S.

workers and how the factfinding processis utilized by DOL as the basis ofinformation for the certificationdetermination. See also 20 CFR parts651 through 658, and the Wagner-PeyserAct (29 U.S.C. Chapter 4B).

Part 656 also sets forth theresponsibilities of employers who desireto employ immigrant alienspermanently in the United States. Suchemployers are required to demonstratethat they have attempted to recruit U.S.workers through advertising, throughthe Federal-State Employment Service/One-Stop System, and by other

specified means. The purpose of therecruitment process is to assure thatthere is an adequate test of theavailability of U.S. workers to performthe work and to ensure that aliens arenot employed under conditions thatwould adversely affect the wages andworking conditions of similarlyemployed U.S. workers.

In brief, the current process forobtaining a labor certification requiresemployers to actively recruit U.S.workers in good faith for a period of atleast 30 days for the job openings for

which aliens are sought. The employersjob requirements must conform to theregulatory standards (e.g., thosenormally required for the job), andemployers must offer prevailing wagesand working conditions for theoccupation in the area in which the jobis located. Further, employers may notfavor aliens or tailor the job

requirements to any particular aliensqualifications.

During the 30-day recruitment period,employers are required to place a three-day help-wanted advertisement in anewspaper of general circulation, or aone-day advertisement in a professional,trade, or business journal, or in anappropriate ethnic publication.Employers are also required to place a30-day job order with the local office ofthe State Workforce Agency in the statein which the employer seeks to employthe alien. Alternatively, if employers

believe they have already conducted

adequate recruitment efforts seekingqualified U.S. workers at prevailingwages and working conditions throughsources normal to the occupation andindustry, they may request a waiver ofthe otherwise mandatory 30-dayrecruitment efforts. This waiver processis generally referred to as involvingReduction in Recruitmentapplications. If the employer does notrequest RIR processing or if the requestis denied, the help-wantedadvertisements which are placed inconjunction with the mandatory thirty-day recruitment effort direct jobapplicants to either report in person to

the State Workforce Agency office or tosubmit resumes to the State WorkforceAgency.

Job applicants are either referreddirectly to the employer or theirresumes are sent to the employer. Theemployer then has 45 days to report tothe State Workforce Agency the lawful,job-related reasons for not hiring anyU.S. worker referred. If the employerhires a U.S. worker for the job opening,the process stops at that point, unlessthe employer has more than oneopening, in which case the applicationmay continue to be processed. If,

however, the employer believes thatable, willing and qualified U.S. workersare not available to take the job, theapplication, together with thedocumentation of the recruitmentresults and prevailing wage information,are sent to one of the Departmentsregional offices. There, it is reviewedand a determination is made as towhether or not to issue the laborcertification based upon the employerscompliance with the regulationsgoverning the program. If theDepartment of Labor determines that

there are no able, willing, qualified andavailable U.S. workers, and that theemployment of the alien will notadversely affect the wages and workingconditions of similarly employed U.S.workers, we so certify to the INS and theDOS, by issuing a permanent laborcertification. See 20 CFR part 656; seealso section 212(a)(5)(A) of the

Immigration and Nationality Act, asamended (INA).

IV. Discussion of RegulatoryAmendments

A. Definitions

We have made several changes to thedefinitions of the terms used in part656. With the exception of the changeof the definition of the termemployer, substantive changes indefinitions are discussed along withsubstantive changes in the relevantregulatory provisions.

The definition of employer would be

amended to reflect the longstandingpolicy articulated in TechnicalAssistance Guide No. 656 LaborCertifications, issued in 1981 that: Persons who are temporarily in the

United States, such as foreigndiplomats, intracompany transferees,students, exchange visitors, andrepresentatives of foreign informationmedia cannot be employers for thepurpose of obtaining a laborcertification for permanent employment;and Job opportunities consisting solely

of job duties that will be performed

totally outside the United States, itsterritories or possessions cannot be thesubject of a permanent application foralien employment certification.

B. Schedule A

1. General

Schedule A is a list of occupations forwhich DOL has precertified jobopportunities, having madedeterminations that qualified U.S.workers are not able, willing, andavailable, and that alien employmentwill not adversely affect the wages andworking conditions of similarly

employed U.S. workers. See 20 CFR656.10 and 656.22. Certificationapplications are filed with INS or theDepartment of State, and those agenciesdetermine whether an individualapplication has been precertified byDOL.

2. Professional Nurses

We have conformed the generaldescription of aliens seeking Schedule Alabor certification as professional nursesat 656.5(a)(1) (currently 656.10(a)(2))to the procedures at 656.15(c)(2)



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(currently 656.22(c)(2)) to indicate thatonly a permanent license can be used tosatisfy the alternative requirement topassing the Commission on Graduates ofForeign Nursing Schools exam that thealien hold a full and unrestricted licenseto practice professional nursing in theState of intended employment. INS hasinformed us that it has received

applications with temporary licenses orpermits filed as supportingdocumentation to Schedule Aapplications. Our intent in promulgatingthe current Schedule A procedures forprofessional nurses was to put an end tothe pre-1981 practice whereby somenurses entered the United States ontemporary licenses and permits, butfailed to pass State examinations for apermanent license. As we have statedwith respect to this issue, it is not inthe public interest to grant certificationto nurses who will not be able topractice their profession or who will

likely limit or otherwise adversely affectthe wages or job opportunities for U.S.workers in lower-skilled jobs. 45 FR83926, 83927 (December 19, 1980); seealso 20 CFR 656.22(c)(2) (1991).

To be consistent with the descriptionof the other occupational groups onSchedule A, the definition ofprofessional nurse would be movedfrom the section containing thedefinitions, at 656.3 in the currentrule, to the section providing a generaldescription ofSchedule A, at 656.5 inthe proposed rule.

3. Aliens of Exceptional Ability In the

Performing ArtsThe amendments would remove

aliens of exceptional ability in theperforming arts from the specialhandling procedures and include themon Schedule A as a separate category.The employer or the alien will have tosubmit to INS the documentationcurrently required by 20 CFR656.21a(a)(1)(iv)(A)(1) through(a)(1)(iv)(A)(6) of the currentregulations. Current recruitmentrequirements consisting of anadvertisement or a statement from theunion, if customarily used as a

recruitment source in the area orindustry, will no longer be required. Asa practical matter, under 20 CFR656.21a, once we determined that analien was of exceptional ability in theperforming arts, certification was issuedin virtually all such cases. INS can makethis determination as readily as DOL.Such determinations are similar todeterminations Immigration Officersmake for aliens of exceptional ability inthe sciences and arts under Group II ofSchedule A. In both cases adetermination has to be made whether

or not the aliens work during the pastyear and intended work in the UnitedStates will require exceptional ability.

Aliens of exceptional ability in thesciences or arts comprise Group II ofSchedule A. We have delegated thedetermination whether an alien

beneficiary of a labor certificationapplication qualifies for Schedule A to

the Immigration and NaturalizationService (INS). Schedule A applicationsare filed with the INS; not with theDepartment of Labor. The current andproposed regulations provide that theSchedule A determination of the INSshall be conclusive and final. Thereforethe employer may not make use of theadministrative review procedures inPart 656. The INS, however, in theprocess of making its Schedule Adetermination may request an advisoryopinion as to whether an alien isqualified for the Schedule A occupationfrom the Division of Foreign Labor

Certifications.We have also concluded, based on thesmall number of applications submittedon behalf of aliens of exceptional abilityin the performing arts and experience inevaluating the required recruitmentreports submitted in conjunction withsuch applications, that there are fewperforming artists, whether alien

beneficiaries or U.S. workers, who cansatisfy the standards to qualify as analien of exceptional ability in theperforming arts as defined in theregulations. Consequently, theadmission of the few aliens who mayqualify as aliens of exceptional ability in

the performing arts will not have anadverse effect on the wages and workingconditions of U.S. performing artists.

C. Schedule B

Schedule B is a list of occupations forwhich we determined that U.S. workersare generally able, willing, qualified andavailable, and that the wages andworking conditions of United Statesworkers similarly employed willgenerally be adversely affected by theemployment of aliens in the UnitedStates in such occupations. (See 20 CFR656.11(a) and 23(a) and (b)). The current

regulations require that a waiver mustbe obtained to receive certification ofSchedule B jobs. A request for a waivermust be filed along with the applicationto obtain a certification for anoccupation listed on Schedule B.

We propose to eliminate Schedule B,because program experience indicatesthat it has not contributed anymeasurable protection to U.S. workers.Once an employer files a Schedule Bwaiver, the application is processed thesame as any other application processedunder the non-RIR, basic process.

Whether or not an application for aSchedule B occupation is certified isdependent on the results of the basiclabor market test detailed in 656.21 ofthe current regulations.

D. General Instructions

1. Expansion of Posting Requirement

The posting regulation at 656.10(d)(ii) in the proposed rule hasbeen expanded to require in addition toa posting a notice of the Application forPermanent Labor Certification (ETAForm 9089), that the employer mustpublish the posting in any and all in-house media, whether electronic orprinted, in accordance with the normalprocedures generally used in recruitingfor other positions in the employersorganization. Employers must also beprepared to provide documentation ofthe posting requirements in the event ofan audit.

2. Ability to Pay and Place the Alien onthe Payroll

The current regulations andApplication for Alien EmploymentCertification form (ETA 750) requirethat the employer document that it hasenough funds available to pay the wageor salary offered the alien, and that(t)he employer will be able to place thealien on the payroll on or before thedate of the aliens proposed entranceinto the United States. We propose toeliminate these provisions from theregulations and the Application forAlien Employment Certification form,

since our examination of these issues isa duplication of the examination of theemployers financial standing and theability to place the alien on the payrollundertaken by the INS when itprocesses the employers petition.Moreover, these provisions are alsounnecessary because the underlyingissues could still be addressed becausewe are proposing to retain the provisionin the current regulations that (t)he jobopportunity has been and is clearlyopen to any qualified U.S. worker. Ifthe employer is not in a position to paythe alien and/or place him or her on the

payroll, it is not offering a jobopportunity that is clearly open to U.S.workers.

E. Fees

The Appendix to the FY 2001 Budgetof the United States states that(l)egislation will be proposed thatwould authorize the Secretary of Laborto collect fees from employers for thecertification of certain aliens as eligibleworkers under the Immigration andNationality Act. Although specificlegislation has not been proposed to



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implement the fee charging language inthe Presidents budget, the proposedrule contains a provision outlining howfee charging would be implemented if it

becomes law. If this occurs, the finalrule would require employers to submita fee with their applications. A chargeof $30.00 would be imposed if a checkin payment of the fee is not honored by

the financial institution on which it isdrawn. The existence of any outstandinginsufficient funds checks would begrounds for returning applications foralien employment certification to theemployer as unacceptable forprocessing. Receipt of any insufficientfunds checks while the application is

being processed would be grounds fordenying the application. Receipt of anyinsufficient funds checks after anapplication has been certified would begrounds for revoking the certification. Ifan application is returned to theemployer because it was incomplete, the

employer would be able to request arefund of the fee or resubmit theapplication.

Fees would also be required forSchedule A and Sheepherderapplications which are submitted to INSfor adjudication.

If legislation authorizing the Secretaryof Labor to collect fees from employersfor the certification of immigrantworkers is not passed by the time aFinal Rule is to be published, theproposed fee provisions will not beincluded in the Final Rule.

F. Applications for Labor Certification

for Schedule A Occupations1. PWDR Required to File Schedule AApplications With INS

Employers would be required tosubmit the required processing fee, acompleted PWDR endorsed by the SWA,and a completed Application for AlienEmployment Certification form to theappropriate INS office. The currentApplication for Alien EmploymentCertification form (ETA 750) requiresemployers to enter the offered rate ofpay and to certify that the wage offeredequals or exceeds the prevailing wage.

Since the application form no longercontains the offered wage, employerswould be required to submit acompleted and endorsed PWDR as wellas the application form in Schedule Acases to the appropriate INS office.

2. Aliens of Exceptional Ability in thePerforming Arts

As explained above, the proposed rulewould remove aliens of exceptionalability in the performing arts from thespecial handling procedures andinclude them on Schedule A and the

documentation currently required by 20CFR 656.21a(a)(1)(iv)(A)(1) through(a)(1)(iv)(A)(6) of the regulations would

be required to be submitted to INS bythe employer or the alien beneficiary.

G. Labor Certification Applications forSheepherders

Procedures for filing applications for

Sheepherders in the current regulationsare in the special handling proceduresat 656.21(a). The new system does notcontain a section on special handlingprocedures, since we will handle allapplications submitted to theDepartment in the same way.Sheepherder applications will continueto be submitted to INS along with therequired processing fee. Employerswould have to submit to the appropriateINS officer in addition to the processingfee: A completed Application for Alien

Employment Certification form;

A completed PWDR endorsed bythe SWA; and A signed letter or letters from all

U.S. employers who have employed thealien as a sheepherder during theimmediately preceding 36 months,attesting that the alien has beenemployed in the United States lawfullyand continuously as a sheepherder, forat least 33 of the immediately preceding36 months.

Employers that cannot not meet therequirements to file their applicationsfor sheepherders with INS will be ableto file their applications under therevised basic process described below.

H. Basic Process

1. Filing Applications

Employers would be required to file acompleted Application for AlienEmployment Certification form and aPWDR endorsed by the SWA with adesignated ETA application processingcenter. Supporting documentation thatmay be requested by the CertifyingOfficer in an audit letter would not befiled with the application, but theemployer would be expected to be ableto provide required supporting

documentation if its application wereselected for audit.The new system would limit the role

of the SWA in the permanent laborcertification process to providingPWDs. Prevailing wage determinationsare currently made by SWAs after theapplication has been filed as part of thenormal process of reviewing anapplication and informing the employerof deficiencies therein. In the newprocess, the employer would still berequired to obtain a PWD from theSWA, although the timing would

change from a post-filing action to a pre-filing action.

Under the proposed regulations,before filing a permanent applicationwith an ETA application processingcenter, the employer would submit aPWDR to the SWA. (The machinereadable PWDR would also be used tosubmit prevailing wage requests for the

H1B and H2B programs.) The SWAwould issue a PWD on the PWDR formand return it to the employer. The fullyexecuted PWDR form would becomepart of the new application form filed atan ETA application processing center.

2. Processing

Computers would do an initialanalysis of the information provided onthe machine readable applicationform. Applications that could not beaccepted for processing because certaininformation that was requested by theapplication form was not provided will

be returned to the employer.Applications accepted for processingwould be screened and would becertified, denied or selected for audit.

Information on the form may trigger adenial of the application or a request foran audit by Federal regional office staff.The application may also be selected foraudit on a random basis as a qualitycontrol measure. If an application is notdenied or selected for audit weanticipate that the application will becertified and returned to the employerwithin 21 days.

If the application is selected for audit,we will send the employer a letter with

instructions to furnish requireddocumentation supporting theinformation provided on the applicationform within 21 calendar days of the dateof the request. If the requestedinformation is not received in a timelyfashion, the application will be denied.

3. Filing Date

Applications accepted for processingwill be date stamped. Applicationswhich are not accepted for processingand returned to employer will not bedate stamped to minimize theadministrative burden, and to

discourage employers from filing anapplication merely to obtain a filingdate, which under the regulations of theINS and Department of State becomesthe priority date for processing petitionsand visa applications, respectively.

Employers will be able to withdrawapplications for alien employmentcertification filed under the currentregulations and file an application forthe identical job opportunity involvedin the withdrawn application under theproposed rule without loss of the filingdate.



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4. Required Prefiling Recruitment

a. Professional occupations.Exclusively for the purpose of the

permanent labor certification program,the proposed rule defines a professionaloccupation as an occupation for whichthe attainment of a bachelors or higherdegree is a usual requirement for theoccupation. Employers would berequired to adequately test the labormarket at prevailing wages and workingconditions during the 6-month periodpreceding the filing of the application.The recruitment steps consist ofprescribed mandatory and alternativesteps and are designed to reflect whatwe believe, based on our programexperience, are the recruitment methodsthat are most appropriate to theoccupation. The mandatory steps forprofessional occupations consist of: Placement of a job order with the

SWA serving the area of intendedemployment; Placement of two advertisements in

the Sunday edition of the newspaper ofgeneral circulation most appropriate tothe occupation and the workers likely toapply for the job opportunity in the areaof intended employment; and Placement of an advertisement in

an appropriate journal in lieu of oneSunday advertisement if the positioninvolves experience and an advanceddegree.

Under the current system, theemployer may advertise, when anewspaper of general circulation isdesignated as the appropriate

advertising medium, in any newspaperof general circulation. However, ourexperience has shown that someemployers routinely place newspaperadvertisements in those newspaperswith the lowest circulation and thatthese publications are often the leastlikely to be read by qualified U.S.workers. Therefore, in order for theemployers job opening to receiveappropriate exposure, the proposedregulation requires that the mandatoryadvertisements appear in the newspaperof general circulation most appropriateto the occupation and the workers most

likely to apply for the job opportunityin the area of intended employment. Forexample, in a relatively largemetropolitan area such as Philadelphia,Pennsylvania or Washington, DC, itwould not be appropriate to place anadvertisement for a computerprofessional in a suburban newspaper ofgeneral circulation since workersinterested in professional jobs consultthe metropolitan newspapers in the areaof intended employment with thelargest circulation rather than thesuburban newspapers of general

circulation. On the other hand, it wouldbe appropriate to advertise in asuburban newspaper of generalcirculation for nonprofessionaloccupations, such as jewelers,houseworkers or drivers.

If the position involves experienceand an advanced degree, the proposedregulation requires that the employer

place one advertisement in anappropriate professional journal in lieuof one Sunday advertisement. To assurethat employers make a current andcomplete test of the labor market, themandatory recruitment steps must beconducted at least 30 days, but no morethan 180 days, before the application isfiled. In addition, the mandatoryadvertisements must be placed at least28 days apart.

The employer, as indicated above,would also be required to select threeadditional pre-filing recruitment stepsfrom among commonly usedprofessional recruitment channels, suchas job fairs, job search web sites andprivate employment agencies. Unlikethe mandatory steps, one of theadditional recruitment steps mayconsist solely of activity that takes placewithin 30 days of the filing of theapplication.

We are publishing in Appendix A tothe preamble a list of occupations forwhich a bachelors or higher degree isa usual requirement. The basic list wasdeveloped by the Bureau of LaborStatistics (BLS) and was based on itsanalyses of occupations usualeducation and training requirements

conducted to produce the OccupationalOutlook Handbook. The Employmentand Training Administration developeda crosswalk to the O*NET, StandardOccupational Classification (SOC)codes. The occupational titles, alongwith the relevant O*Net-SOC codes andcodes which indicate whether the usualdegree requirement for the occupation isfor a professional degree, doctoraldegree, masters degree, workexperience plus a bachelors or higherdegree, or a bachelors degree, arepresented in the list we are publishingin Appendix A. We do not plan to

codify Appendix A. Additionalinformation about the occupations,including their definitions, can beobtained from O*Net online at http://online.onetcenter.org. Commenters areinvited to submit comments on theappropriateness of the occupationsincluded on the list published inAppendix A.

b. Nonprofessional Occupations

The proposed rule defines a non-professional occupation as anyoccupation for which the attainment of

a bachelors or higher degree is not ausual requirement for the occupation.Recruitment for occupations thatnormally do not require a baccalaureateor higher degree, i.e., non-professionaloccupations, consists of threemandatory steps: two newspaperadvertisements and placement of a joborder with the SWA serving the area of

intended employment. All threerecruitment steps must occur at least 30days but no more than 180 days, beforefiling the application. Like recruitmentfor professional occupations, theadvertisements must be placed at least28 days apart, and must run in theSunday edition of the newspaper ofgeneral circulation most appropriate tothe occupation and the workers likely toapply for the job opportunity.

The advertising requirements for bothprofessional and nonprofessionaloccupations are more extensive thanunder the current regulations. The

difference in advertising requirementsbetween professional andnonprofessional occupations is based onthe Departments experience as to howemployers advertise for these two broadcategories of workers. The Departmentis interested in receiving comments onthe more extensive advertisingrequirements, and the differentadvertising requirements forprofessional and nonprofessionaloccupations.

5. Newspaper Advertising Requirements

The proposed requirements for thenewspaper advertisements are modeled

after current regulatory requirements at20 CFR 656.21(g), except theadvertisement must: (1) identify theemployer; (2) direct potential jobseekers to the employer and not theSWA; and (3) provide a description ofthe job and its geographical location thatis sufficiently detailed to fully informU.S. workers of the particular jobopportunity. Additionally, the wagemust equal or exceed the prevailingwage entered on the PWDR by the SWA.Any job requirements listed in theadvertisement may not exceed thoselisted on the PWDR.

6. Recruitment ReportThe employer will be required to

maintain documentation of therecruitment efforts it has undertakenand the results thereof, including thelawful job-related reasons for rejectingU.S. workers who applied for the job.Recruitment reports may be required inthe cases selected for audit and arerequired in every case in whichemployers conduct supervisedrecruitment. Under the currentregulations, employers have always had



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to report on the lawful job-relatedreasons why each U.S. worker applyingfor the job or referred to the employerwas not hired. See 20 CFR 656.21(b)(6)in the current regulations. The proposedregulation provides that the employermust prepare a summary reportdescribing the recruitment steps takenand the results, including the number of

U.S. applicants, the number of jobopenings in the job opportunity, thenumber of applicants hired and, ifapplicable, the number of U.S. workersrejected summarized by the lawful jobreasons for such rejections. TheCertifying Officer, however, afterreviewing the employers recruitmentreport may request the resumes orapplications of the U.S. workers whowere rejected sorted by the reasons forrejection provided by the employer inits recruitment report.

The proposed rule governing thecontent of recruitment reports, required

for recruitment conducted prior to filingthe application by the employer or forsupervised recruitment that may berequired by the Certifying Officer,would also clarify our positionregarding qualified U.S. workers. Wehave added the requirements currentlyfound at 656.24(b)(2)(ii) to therequirements for the recruitment reportsrequired to be submitted by employerson the results of their prefiling andsupervised recruitment of U.S. workers.The recruitment requirements thusprovide that a U.S. worker may bequalified for the employers job

opportunity even if he/she does notmeet every one of the employers jobrequirements. The U.S. worker who, byeducation, training, experience, or acombination thereof, qualifies by beingable to perform, in the normallyaccepted manner, the duties involved inthe occupation may not be rejected forfailing to meet a specific jobrequirement. In addition, the U.S.worker is considered qualified, if he/shecan acquire during a reasonable periodof on-the-job-training, the skillsnecessary to perform as customarilyperformed by other U.S. workerssimilarly employed, the duties involved

in the occupation.

7. Job Requirements

a. Business Necessity Standard and JobDuties

The requirement that the employersjob requirements must be thosenormally required for jobs in the UnitedStates would be retained in the newsystem. Employers, however, would not

be able to justify job requirements thatexceed those that are normal by use of

business necessity. The business

necessity standard, currently at 20 CFR656.21(b), often works to thedisadvantage of U.S. workers. Thisregulation has been difficult toadminister and has generated a greateramount of litigation than any otherregulatory provision in the currentregulations. Since the position forwhich certification is sought is usually

held by an alien worker who is thebeneficiary of the application, jobrequirements tend to be manipulated tofavor the selection of the alien. Theexisting business necessity standardrequires the CO to evaluate the uniquestandards of an employers business. Inhighly technical areas this is anextremely difficult undertaking and may

be subject to employer manipulationsince we are in no position to secondguess the employer in suchcircumstances.

We have concluded that any businessnecessity standard that may be adopted

would present similar problems.Therefore, the proposed rule would notretain a business necessity standard asa justification for employers jobrequirements that exceed requirementsthat are normal to jobs in the UnitedStates. However, as discussed below,the case law relating to how the

business necessity standard relates to alanguage requirement is being adopted.Further, any requirements other thanthose relating to the number of monthsor years of experience in the occupationor the number of months or years ofeducation or training in the occupationcannot be specified as a job

requirement, unless justified in thelimited circumstances discussed below.

Accordingly, the proposed ruleprovides that the job opportunitysrequirements cannot exceed the SpecificVocational Preparation level assigned tothe occupation as shown in the O*Net

Job Zones, except in certain limitedcircumstances, as explained below.

b. Other Job Requirements

Job requirements other than thoserelating to the number of months oryears of experience in the occupation orthe number of months or years of

training cannot be used unless justifiedin certain limited circumstances,discussed below.

(1) Previous Employment of U.S.Workers

Other requirements can be justified ifthe employer employed a U.S. worker toperform the job opportunity with theduties and requirements specified in theapplication within 2 years of filing theapplication. ETAs operating experienceindicates that the more recently a jobexisted and was filled by a U.S. worker

before the time an application is filed,the more likely it is to involve a job thatis clearly open to U.S. workers. In theevent of an audit, the proposed ruleprovides that previous employment of aU.S. worker in an occupation withrequirements other than those relatingto experience, education and/or trainingcan be documented by furnishing the

name of the former employee, and anappropriate combination of thefollowing: job description, resume,payroll records, letter from previousemployee and previous recruitmentdocumentation.

(2) Other Requirements Are Normal tothe Occupation

Requirements other than thoserelating to amount of experience andeducation could be justified if therequirements were normal to theoccupation in order for a person toperform the basic job duties and wereroutinely required by other employersin the industry. The proposed ruleprovides that employers can documentsuch requirements by providing copiesof state and/or local laws, regulations,ordinances; articles; help-wantedadvertisements; or employer surveys.Acceptable examples, depending on theoccupation, include but are not limitedto, professional trade or businesslicenses, licensing standards, specifiedtyping speed, and the ability to lift aminimum number of pounds.

(3) Foreign Language Requirement

Preventing employers from artificially

tailoring job opportunities to fit theunique skills of the incumbent alien hasalways been a major issue is the laborcertification process. Since 1977, wehave addressed this through the use ofthe business necessity test. Forreasons already discussed, we are notutilizing business necessity in the newsystem. However, with respect tolanguage requirements, which are oftenused by employers seeking to artificiallyrestrict the job to the incumbent alien,the use of the business necessitystandard produced a well-understoodand, generally, well-accepted body of

law about when and how languagerequirements can be utilized. Theproposed rule incorporates that legalstandard.

Consistent with the majority ofBALCA decisions, the proposed rulewould require that a foreign languagerequirement cannot be included merelyfor the convenience of the employer or

because it is a mere preference of theemployer, co-workers or customers.Although the proposed rule wouldeliminate any business necessitystandard as a means of justifying a



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foreign language requirement, the rulewould incorporate the existingstandards and criteria developed underBALCA case law. Therefore, a foreignlanguage can be based on the nature ofthe occupation; e.g., translator, or, forexample, the existence of the need tocommunicate with a large majority ofthe employers customers or regular

contractors who cannot communicateeffectively in English. This can bedocumented by the employer furnishingthe number and proportion of its clientscontractors who cannot communicate inEnglish, a detailed explanation of whythe duties of the position for whichcertification is sought require frequentcontact with and communication withcustomers or contractors who cannotcommunicate in English, and why it isreasonable to believe that the foreignlanguage customers and contractorscannot communicate in English.

(4) Combination Occupations

The revised regulation makes twochanges to the provision aboutcombination of duties in the currentregulation. First, the proposedregulation uses the term combinationof occupations instead ofcombinationof duties as most jobs require theincumbent to perform a combination ofduties. Second, the ability to documentthe need for a combination ofoccupations would be limited to twoinstead of three alternative forms ofdocumentation that can be furnished bythe employer to support a combination

of occupations under the currentregulations. For the reasons explainedabove in the discussion on theelimination of a business necessitystandard, business necessity would nolonger be a basis for justifying a jobopportunity involving a combination ofoccupations. Further, the alternativeprovided in the current regulations forjustifying a combination of duties whichallows the employer to document that ithas normally employed persons for thatcombination of duties would bereplaced with the standard, discussedabove, for justifying requirements other

than experience and education that arebased on the previous employment of aU.S. worker. Accordingly, the revisedregulation limits the alternative forms ofdocumentation the employer canfurnish to support a combination ofoccupations to documentation that itemployed a U.S. worker for the samecombination of occupations involved inthe application within 2 years of filingthe application and/or that workerscustomarily perform the combination ofoccupations in the area of intendedemployment.

Consistent with our longstandingpolicy, combination jobs would beclassified and prevailing wagesdetermined in the following order: (1)The highest paying occupation; (2) thehighest skilled occupation; or (3) theoccupation that requires the largestpercentage of the applicants time. Thehighest paying occupation is considered

first in classifying the job opportunitybecause the prevailing wage for thehighest paying occupation has to beoffered by the employer in order toconduct a valid test of the labor marketfor the highest paying occupationinvolved in the employers jobopportunity. If two or more occupationshave the same high prevailing wage, thejob opportunity would be classifiedaccording to the one that is the mosthighly skilled. If two or moreoccupations require the same high levelof skill, the combination occupationwould be classified in accordance with

the one that would require the largestpercentage of the incumbents time.

8. Actual Minimum Requirements

The proposed rule precludesemployers including as a requirementfor the job opportunity any experiencethe alien gained working for theemployer in any capacity, includingworking as a contract employee. Since1977, we have prohibited usingexperience gained with the employer to

be used as qualifying experience exceptin cases where the alien gained theexperience in dissimilar jobs or ininstances where it is no longer feasible

for the employer to train a U.S. worker.After over 2 decades of administeringthis regulation, we have concludedthere is no material difference in theneed to protect U.S. workers if the aliengained the experience in a similar job ora dissimilar job, or if the employermaintains that it is no longer feasible totrain another worker for the jobinvolved in the application.

The need to protect U.S. workersstems in large measure from the samereason we are proposing to eliminate

business necessity as a justification forexceeding job requirements that are

normal to the job in the United States.In situations where the alien encumbersthe job opportunity involved in theemployers application, jobrequirements tend to be manipulated infavor of the alien incumbent to thedisadvantage of U.S. workers.

The question of what employingentity is the employer has alsopresented considerable confusion. Toclarify this issue and to maximizeprotection to U.S. workers we haveconcluded, consistent with the BALCAdecision In the Matter of Haden, Inc.

(88INA245, August 30, 1988), that thedefinition of employer should be

broadly drawn. Accordingly, wepropose to define the term employerto include predecessor organizations,successors in interest, a parent, branch,subsidiary, or affiliate, whether locatedin the United States or another country.Although ETA has followed Haden in

administering the current regulations,the Department seeks comments on theproposed definition of employer foradministering the provision pertainingto actual minimum requirement at 656.17(h).

9. Alternative Experience Requirements

We are proposing to eliminate the useof alternative experience requirementsas a means of qualifying for theemployers job opportunity for much thesame reasons we are proposing toeliminate business necessity and topreclude the employer from includingas a requirement for the job opportunityany experience the alien gained workingfor the employer in any capacity.

As a practical matter, in virtually allinstances involving alternativeexperience requirements the alien

beneficiary has been employed, usuallyby the employer applicant, in a jobrequiring less than 2 years of training orexperience. The Act only allocates10,000 visas a year to workersimmigrating to work in theemployment-based preference providedin the Act for such jobs (see 8 U.S.C.1153(b)(3)(A)(iii)). The visa category forthese unskilled jobs is oversubscribed

and there is approximately a 412 yearwait for aliens who are waiting toimmigrate to work in jobs requiring lessthan 2 years of training and experience.The other employment-basedpreferences requiring labor certificationare generally not oversubscribed. Theprimary objective of the employer inspecifying alternative experiencerequirements is to obtain certificationfor a job opportunity for which visanumbers are currently available. Inthese cases, as in the situations where

business necessity justifications havebeen proffered, or in instances where

the employer maintains the alien gainedthe experience in a dissimilar jobs ormaintains that it is no longer feasible totrain another worker for the jobinvolved in the application, there is aneed to protect U.S. workers as the jobrequirements tend to be manipulated tofavor the alien beneficiary.

10. Conditions of Employment

The current regulations do notexplicitly address conditions ofemployment, but we considerconditions of employment, such as a



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requirement to live in the employershousehold or a requirement to work asplit shift, an important element ofworking conditions. Generally, unusualworking conditions can be justified ifthe employer can document that theyare normal to the occupation in the areaand industry. The one exception to thisrule is for live-in household domestic

service workers. Because of the pasthistory of program abuse involving thefiling of large numbers ofaccommodation cases motivatedprimarily by the desire to obtainpermanent resident alien status for thealien beneficiary and not by legitimateemployment needs, the proposed rulewould incorporate the standards andcriteria that have been developed byBALCA case law to determine when alive-in requirement for a householddomestic service workers is acceptable.

Therefore, live-in requirements areacceptable for household domestic

service workers only if the employer candemonstrate that the requirement isessential to perform in a reasonablemanner the job duties as described bythe employer, and there are not cost-effective alternatives to a live-inhousehold requirement. Mere employerassertions do not constitute acceptabledocumentation. For example, a live-inrequirement could be supported bydocumenting two working parents andyoung children in the household, and/or the existence of erratic workschedules requiring frequent travel anda need to entertain business associatesand clients on short notice. Depending

upon the situation, acceptabledocumentation could consist of travelvouchers, written estimates of costs ofalternatives such as baby sitters, and/ora detailed listing of the frequency andlength of absences of the employer fromthe home.

The proposed rule would also retainthe filing and documentationrequirements at 20 CFR 656.21(a) forlive-in household domestic serviceworkers that have been in thepermanent labor certificationregulations since 1977 to minimizeprogram abuse and abuse of the alien,

such as the requirement that a signedcopy of the contract must be providedto the alien and documentation of thealien having 1 years prior experience inthe occupation and are described belowin greater detail.

11. Layoffs

The current regulations do notspecifically require employers toconsider potentially qualified U.S.workers who may have been laid offwithin a reasonably contemporaneousperiod of time of the filing of the labor

certification application by theemployer. However, it has always beenour position that Certifying Officershave the authority to consider theavailability of these workers under 656.24(b)(2)(i) and (iii) of the currentregulations. Under 656.24(b)(2)(i), theCertifying Officer may determinewhether there are other appropriate

sources of workers from which theemployer should recruit or might beable to recruit U.S. workers. Section656.24(2)(iii) provides that indetermining whether U.S. workers areavailable, the Certifying Officer shallconsider as many sources as areappropriate. The proposed rule wouldprovide Certifying Officers with broadauthority to designate other sources ofrecruitment where the employer would

be required to recruit for U.S. workers.Accordingly, the proposed rule would

require employers, if there has been alayoff in the area of intended

employment within 6 months of thefiling of the application, to attest to anddocument notification andconsideration of potentially qualifiedU.S. workers involved in the layoff andthe results of such notification.

12. Alien Influence Over JobOpportunity

When an employer seeks laborcertification for an alien who is in aposition to unduly influence hiringdecisions or who has such a dominantrole in, or close personal relationshipwith the employer and/or employers

business that it is unlikely that theemployer would replace the alien witha qualified U.S. applicant, BALCAdecisions allow the Certifying Officer todetermine that the job opportunity hasnot been clearly open to any qualifiedU.S. worker.

The leading BALCA decision,Modular Container Systems, Inc. (89INA228, July 16, 1991), articulatesseveral factors that should beconsidered by Certifying Officers todetermine whether or not the jobopportunity is bona fide or clearly opento U.S. workers. The proposed ruleincorporates this requirement. Theproposed rule specifies whatdocumentation the employer must beprepared to furnish to enable theCertifying Officer to evaluate theemployers application in light of thefactors articulated by BALCA inModular Container Systems. Thesefactors include whether the alien: Is in the position to control or

influence hiring decisions about the jobfor which labor certification is sought; Is related to the corporate directors,

officers or employees;

Was an incorporator or founder ofthe company;

Has an ownership interest in thecompany;

Is involved in the management ofthe company;

Is one of a small number ofemployees;

Has qualifications for the job thatare identical to specialized or unusualjob duties and requirements stated inthe application; and

Is so inseparable from thesponsoring employer because of his orher pervasive presence and personalattributes that the employer would beunlikely to continue in operationswithout the alien.

I. Optional Special Recruitment andDocumentation Requirements forCollege and University Teachers

Procedures for filing applications forcollege and university teachers in thecurrent regulations are in the specialhandling procedures at 20 CFR656.21(a). As indicated above, the newsystem does not provide for any specialhandling procedures. All applicationswe receive will be processed in thesame way, although there may be somedifferences depending upon theoccupation, in the attestation anddocumentation requirements.Consequently, procedures for filingapplications on behalf of college anduniversity teachers would be in a

separate section. The documentationrequirements for filing applications forcollege and university teachers wouldremain much the same as under thecurrent regulation. The revisedregulations, however, would specificallyrecognize current operating practice thatemployers that cannot or choose not tosatisfy the special recruitmentprocedures for college and universityteachers may avail themselves of the

basic process in the new system.

Whether employers file applicationson behalf of college and universityteachers under the special recruitmentprocedures or the basic process, they arerequired to be able to document, ifrequested by the Certifying Officer, thatthe alien was found to be more qualifiedthan any U.S. worker who applied forthe job opportunity. The Act requires, inthe case of members of the teachingprofession, that U.S. workers have to beequally qualified with respect to thealien beneficiary to be considered by theemployer for the job opportunity forwhich certification is sought. See 8U.S.C. 1182(a)(5)(A).



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J. Live-in Household Domestic ServiceWorkers

Applications for household domesticservice occupations would be filed, asin the current rule, under the revised

basic process. Most of thedocumentation requirements for live-inhousehold domestic service workers are

unchanged from the currentrequirements contained in the currentregulation at 656.21(a)(3)(i) and (ii).However, some of the information thatwas previously required to be providedin item 20 of Form ETA 750, Part A,Statement for Live-at-Work Job Offerswill no longer be collected on theapplication, but employers will berequired to furnish that information iftheir applications are audited. Thisinformation includes a description ofthe residence, the number of individualsliving in the household and their agesin the case of persons under the age of18, and a statement as to whether or not

free board and a private room not sharedby another person will be provided tothe alien. The employer would berequired to attest on the applicationform that it will maintain all requireddocumentation and, in the event of anaudit, the employer will be required tosubmit this documentation to ETA, aswell as the other documentation that isrequired for all occupations under the

basic labor certification process.

K. Audit Letters

Under the current regulations, if aCertifying Officer determines that a

certification cannot be issued, a Noticeof Findings (NOF) must first be issuedto the employer notifying it of thespecific reasons for which the CertifyingOfficer intends to deny the application.Issuing a NOF and analyzing employersresponses is probably the most timeconsuming aspect of the current laborcertification system. The proposed ruledoes away with NOFs.

As indicated above, after anapplication has been determined to beacceptable for filing, a computer systemwould review it based upon variousselection criteria that would allow

applications to be identified for anaudit. Additionally, as a quality controlmeasure, the regulations provide thatsome applications could be randomlyselected for audit without regard to theresults of the computer analysis. Auditletters would be, for the most part,standardized, computer generateddocuments, stating the documentationthat must be submitted by the employer.The proposed regulation would provide,in virtually all instances where anemployer could be required to submitdocumentation in support of its

attestations, the type of documentationthe employer would be required tomaintain and furnish in the event of anaudit. Employers would be expected tohave assembled and have a hand in alldocumentation necessary to supporttheir applications before they aresubmitted.

If the employer did not mail the

requested documentation within 21days of the date of the audit letter, theapplication would be denied and theadministrative-judicial reviewprocedures provided for in the proposedrule would not be available. We haveconcluded that 21 days is sufficient timefor employers to respond to audit letters

because, as indicated above, theregulations indicate whatdocumentation employers will berequired to assemble, maintain andsubmit to respond to an audit letter.Extensions would not be granted torespond to audit letters. Failure to

provide required documentation in atimely manner would be deemed amaterial misrepresentation to dissuadethose small number of employers thatconceivably may file applicationswithout complying with all thedocumentation requirements from filingsuch applications. Further, failure totimely provide documentation wouldconstitute a refusal to exhaust availableadministrative remedies and theadministrative-review procedureswould not be available.

If the requested documentation issubmitted on time, the Certifying Officerwould review the documentation

submitted by the employer under theproposed standards in 656.24 of thispart.

As discussed below in the section onlabor certification determinations, if theCertifying Officer determines that theemployer materially misrepresenteddocumentation requirements due to afailure to provide requireddocumentation pursuant to 656.21(a)(3)(ii) of this part, orotherwise determines a materialmisrepresentation was made withrespect to the application for anyreason, the employer may be required to

conduct supervised recruitmentpursuant to section 656.21 of this partin future filings of labor certificationapplications for a period of 2 years.Commenters are invited to suggest itemsthat can be added to the applicationform that would be helpful inidentifying applications that mayinvolve fraud and abuse.

Before making a final determinationin accordance with the standards in 656.24 of this part, the CertifyingOfficer could request supplementaldocumentation or require the employer

to conduct supervised recruitment. Arequest for supplemental documentationcould include a request for certainlimited information not specified in theregulations, but that should be readilyavailable to the employer. For example,if an application under review involvesa job opportunity for a specialty chef,the Certifying Officer could request a

copy of the restaurants menu to aid indetermining whether there was a bona

fide job opening available for a specialtychef.

Once the Certifying Officer hasreviewed all requested information, theCertifying Officer will issue a finaldetermination granting or denying theapplication.

L. Supervised Recruitment

1. General

In any case where the CertifyingOfficer determines it to be appropriate,post-filing supervised recruitment may

be ordered. This would include casesselected for audit and cases whereserious questions arise about theadequacy of the employers test of thelabor market. It is anticipated, however,that the decision to order supervisedrecruitment will usually be based onlabor market information. Supervisedrecruitment would operate much likethe non-RIR recruitment under thecurrent basic process at 656.21, exceptthat the recruitment efforts would bedirected by the Certifying Officer andnot by the SWA, as is the case under thecurrent system.

2. Recruitment Sources

The advertisement requirementswould be more detailed and rigorousthan for pre-application recruitment.The advertisement would be required to

be approved by the Certifying Officerbefore publication and the CertifyingOfficer would direct where it would beplaced. We anticipate that CertifyingOfficers would, based on their broadknowledge of the labor market andexperience in evaluating recruitmentresults placed in various newspapers,direct employers where to place

advertisements. The advertisementwould direct applicants to send resumesor applications to the Certifying Officerand would be required to include asummary of the employers minimumjob requirements. The Certifying Officer,as in the current rule, would have broadauthority to designate other sources ofworkers where the employer shouldrecruit for U.S. workers. The broadauthority of the Certifying Officer todetermine if there are other appropriatesources of workers where the employershould have recruited or might be able



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to recruit U.S. workers would be movedfrom the determination process at 20CFR 656.24 in the current regulations, tothe section on supervised recruitment inthe proposed rule at 20 CFR 656.21.

3. Recruitment Report

At the completion of the supervisedrecruitment efforts, the employer will berequired to document that its effortswere unsuccessful, includingdocumenting the lawful job-relatedreasons for not hiring any U.S. workerswho applied for the position. Asexplained above, employers havealways been required to report on thelawful job-related reasons why eachU.S. worker applying for the job orreferred to the employer was not hiredunder the current regulation at 20 CFR656.21(b)(6). This would be a specificrequirement that employers would haveto address in the employer report onsupervised recruitment. The currentregulation at 20 CFR 656.21(j) specifyingthe content of recruitment reports ispotentially confusing in that it does notagree with the current requirement at 20CFR 656.21(b)(6). In the presentregulations employers only have toprovide the lawful job related reasonsfor not hiring each U.S. workersinterviewed. The other requirements forthe employers recruitment are muchthe same as in the current regulations.The employer would be required toreport the number of U.S. workers whoapplied for the position, the number ofworkers interviewed, the names and

addresses of the U.S. workersinterviewed for the job opportunity, andthe job title of the person whointerviewed the workers.

We are taking the same position onwho is a qualified U.S. worker in thesupervised recruitment process as wetook in our discussion of the issue forthe prefiling recruitment process. A U.S.worker may be qualified even if he/shedoes not meet every one of theemployers job requirements. U.S.workers would be considered qualifiedif the U.S. workers, by education,training, or a combination thereof,qualify by being able to perform, in thenormally accepted manner, the dutiesinvolved in the occupation. U.S.workers would be considered qualifiedif they could acquire, during a period ofreasonable on-the-job training, the skillsnecessary to perform as customarilyperformed by other workers similarlyemployed, the duties involved in theoccupation. Rejection of such workers

based solely on lack of familiarity withsome particular subsidiary job duty willnot be permitted.

M. Labor Certification Determinations

1. Referral of Applications to theNational Office for a Determination andSpecification of Applications to beHandled in the National Office

The provisions that applicationsinvolving special or unique problemsmay be referred to the National

Certifying Officer by the RegionalCertifying Officer and that certain typesof applications or specific applications

be handled in the National Office havebeen deleted because they are no longernecessary. Under the existingregulations there are specific provisionsgoverning the processing of anindividual application through theSWAs and the ETA regional offices.The current regulations specify,depending upon the geographic locationof the employer, which applicationswould be processed and reviewed bythe various Certifying Officers.Accordingly, there was a need forprovisions in the regulations to providethe authority for regional CertifyingOfficers to refer applications to theNational Office or for the NationalOffice to have the authority to directthat certain types of applications orspecific applications be handled in thenational office. Under the new systemthe SWAs will no longer be involved incase processing and the proposedregulations do not specify whichapplications will be reviewed by thevarious Certifying Officers, includingthe National Certifying Officer.Therefore, specific provisions are not

required in the regulations to governreferrals by regional Certifying Officersof applications involving unique orspecial problems to the NationalCertifying Officer, or for the NationalOffice to direct that certain types ofapplications or specific applications behandled in the ETA National Office.

2. Designation of Recruitment Sources

The determination process has beenrevised to reflect that all fact findingwill have been completed by the timethe Certifying Officer makes adetermination. Consequently, the broad

authority of the Certifying Officer todesignate other appropriate recruitmentsources from which the employershould recruit for U.S. workers isdeleted from the determination processand included in the section detailing theoperation of supervised recruitment inthe new system at 656.21.

3. Qualified U.S. Workers

As indicated above, consistent withthe provisions in the regulationsgoverning the content of recruitmentreports that must be completed by

employers whether they conductprefiling or supervised recruitment, thesection on determinations would berevised to provide that, alternatively,the U.S. worker is qualified if he/shecan acquire during a reasonable periodof on-the-job training, the skillsnecessary to perform the dutiesinvolved in the occupation, as

customarily performed by other U.S.workers similarly employed.

4. Material Misrepresentations

As indicated above, if a CertifyingOfficer determines that the employermaterially misrepresented it hadcomplied with all documentationrequirements due to a failure to providerequired documentation pursuant to 656.21(a)(3)(ii) of this part, orotherwise determines a materialmisrepresentation was made withrespect to the application for anyreason, the employer may be required to

conduct supervised recruitmentpursuant to section 656.21 of this partin future filings of labor certificationapplications for a period of 2 years.

5. Reconsideration

The present regulations are silentwith respect to the availability ofmotions for reconsideration after a FinalDetermination. Historically, CertifyingOfficers sometimes honored suchmotions but generally treated them asrequests for review and transmitted thematter to the ALJ.

In order to address this matter, theregulation is amended to specificallyprovide that while motions forreconsideration before the CertifyingOfficer may be filed, the CertifyingOfficer may, in his/her completediscretion, choose to treat the motion asa request for review.

N. Board of Alien Labor CertificationAppeals Review, Consideration andDecisions

1. Only Employer Can Request Review

The current regulations provide that ifa labor certification is denied, a requestfor review of the denial may be made to

the Board of Alien Labor CertificationAppeals, by the employer and by thealien, but in the case of the alien, onlyif the employer also requests such areview. Only an employer can file AnApplication for Alien EmploymentCertification. Moreover, the employercan withdraw its application at anytime. In view of the primacy of theemployer in the labor certificationprocess, we have concluded that itmakes little sense to allow an alien toalso file an appeal and are proposing toonly authorize employer appeals.



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2. Time Allowed to File Requests forReview

Consistent with the objective ofstreamlining and reducing processingtime, the proposed rule would reducethe time to file a request for review to21 calendar days from the 35 daysspecified in the current regulations. TheDepartment believes that 21 days issufficient time for an employer to file arequest for review.

3. Aliens of Exceptional Ability in thePerforming Arts

All references to aliens of exceptionalability in the performing arts would bedeleted from the sections in theproposed rule detailing the proceduresfor filing requests for review and fromthe procedures to be followed by theBoard in considering appeals andissuing decisions, since aliens ofexceptional ability in the performingarts would be moved to Schedule A. The

proposed rule would provide, as doesthe current rule, that the Schedule Adetermination of INS shall beconclusive and final.

4. Amicus Briefs

The provisions for amicus briefs forcases involving college and universityteachers and aliens of exceptionalability in the performing arts would also

be deleted from the sections of theproposed rule detailing the proceduresto be followed in filing requests forreview and the procedures to befollowed by the Board in consideringappeals and issuing decisions.

Provisions for amicus briefs would nolonger be applicable to aliens ofexceptional ability in the performingarts, since they would be on ScheduleA and Schedule A determinations of theINS are conclusive and final. Specificprovisions for amicus briefs are nolonger necessary in the case of collegeand university teachers because BALCA,in practice, accepts such briefs from anyparty that wishes to file one. Thecurrent language implies that BALCAwould accept amicus curiaebriefs onlyin cases involving college anduniversity teachers and aliens of

exceptional ability in the performingarts.

5. Copies of Appeal File

In the interest of providing improvedcustomer service, the revised regulationwould provide that the CertifyingOfficer shall send a copy of the AppealFile to the employer in lieu of only acopy of the index to the Appeal File tothe employer. This would obviate theneed for the employer to examine theAppeal File at the office of theCertifying Officer. The named alien

beneficiary of the labor certificationwould not receive a copy of the appealfile for much the same reasons he or shewould not be allowed to file a requestfor review as discussed above.

6. Elimination of Remands

The current regulations provide thatthe Board may remand cases to a

Certifying Officer for furtherconsideration or fact-finding anddetermination. We anticipate that casesprocessed under the new system would

be sufficiently developed by the timethey get to the Board that there should

be no need to remand a case to aCertifying Officer. The proposedregulation authorizes the BALCA toeither affirm or reverse the CertifyingOfficers decision, but makes noprovision for remands.

O. Validity and Invalidation of LaborCertifications

Substitution of Alien BeneficiariesWe published an interim final rule on

October 23, 1991, effective November22, 1991, which limited the validity oflabor certifications to the specific aliennamed on the labor certificationapplication. (See 56 FR 54925, 54930.)This interim final rule had the effect ofeliminating the practice of allowing thesubstitution of alien beneficiaries onapproved labor certifications. OnDecember 1, 1994, the U.S. DistrictCourt for the District of Columbia,acting under the mandate of the U.S.Court of Appeals for the District of

Columbia in Kooritzkyv. Reich, 17 F.3d1509 (D.C. Cir. 1994), issued an orderinvalidating that portion of the interimfinal rule which eliminated substitutionof labor certification beneficiaries. Theorder had the effect of reinstating theDepartments previous practice ofallowing substitution of alien

beneficiaries on approved laborcertifications.

Although the regulation was neverconformed to the District Court order,we reinstated the practice of allowingthe substitution of alien beneficiaries onapproved labor certifications.

Subsequently, operational responsibilityfor substituting alien beneficiaries onapproved labor certifications wasdelegated to INS. INS issued amemorandum on March 7, 1996,Subject: Substitution of LaborCertification Beneficiaries, to implementthe delegation of the responsibility forsubstituting labor certification

beneficiaries to the Service. On March22, 1996, ETA issued a FieldMemorandum (FM) to its RegionalAdministrators informing them that allrequests for substitution received after

the date of the FM were to be returnedto the employer with instructions to filethe request with INS along with a copyof the I140 preference petition. Theproposed rule would return theregulatory provisions detailing thescope of the certification at 20 CFR656.30(c)(1) and (2) to read the same asthey did before November 22, 1991. As

before the Interim Final Rule, theregulation does not mentionsubstitution.

P. Revocation of Approved LaborCertifications

We propose to provide CertifyingOfficers with limited authority to revokelabor certifications within 1 year of thedate the labor certification is granted or

before a visa number becomes availableto the alien beneficiary, whicheveroccurs first. The proposed rule lists thesteps that may be taken by the CertifyingOfficer, who issued the certification, or

an authorized person acting on his orher behalf, in consultation with theNational Certifying Officer, to revokethe certification if the Certifying Officerfinds that the certification wasimprovidently granted.

The proposal also provides that anemployer may file an appeal withBALCA if it first files timely rebuttalevidence in response to the CertifyingOfficers Notice of Intent to Revoke andthe Certifying Officer determines thatthe certification should be revoked.

Q. Prevailing Wages

1. PWDR

We propose to standardize the PWDprocess through the use of the PWDRform. Before submitting a laborcertification application under the newsystem, the employer will be required tosubmit the new PWDR form to the SWAin the State where the work will beperformed. The PWDR form wouldrequire information from the employerthat would allow the SWA to make therequired determination of the prevailingwage for the job opportunity for whichcertification is sought. Specifically, theproposed form would require the

employer to indicate the location of thejob opportunity in terms of city orcounty and state, the title of the job anda description of the duties to beperformed, the education, training, and/or experience required for the job,including any special requirements.

Upon receipt of a PWDR form, theSWA would review it and woulddetermine the occupationalclassification and the area of intendedemployment. The SWA would thenenter its determination on the PWDRform and return it with its endorsement



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to the employer. The PWDR form maythen be submitted in support of apermanent labor certificationapplication. The SWA determinationwould include a State agency trac

Documents

Department of Labor: 67 FED REG