source: http://www.murthy.com/news/n_intfin.html
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Interim Final Rule on Backlog Reduction Published
Posted Jul 23, 2004
©MurthyDotCom
On July 21, 2004, the U.S. Department of Labor (DOL) published the interim final rule implementing its labor certification backlog reduction plan. For those unaware of why a backlog reduction plan is necessary, there are thousands of labor certifications and RIR applications pending at the various state and federal DOL regional offices, some since 2001, that are yet to be processed. The goal of the DOL is to complete the processing of most such LC and RIR cases within approximately two years after PERM is implemented. To clear the backlogs, DOL has decided to create two centralized backlog reduction processing sites as mentioned in the interim final rule.
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The interim final rule will become effective 30 days from the date it was published. A comment period is also open during that time, but it is unlikely that there will be many changes at the final rule stage.
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The backlog reduction plan amends the regulations to permit the National Certifying Officer (NCO), who is the Chief of the Division of Foreign Labor Certifications, to direct a State Workforce Agency (SWA), or a federal regional office to transfer a pending application or set of pending applications to a centralized processing site. Essentially, it grants the power to move the backlogged cases either from a SWA or a federal region to a new, centralized processing center.
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Procedure for Processing Cases at the Backlog Centers
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The NCO will issue a directive to the SWA or regional office regarding how to identify the cases to be transferred. For each case transferred from an SWA, the centralized processing site will complete all the functions normally performed by the SWA and the Regional Certifying Officer. If the case is unique or complex, the central processing site will consult with the NCO, who may assume responsibility for completion of the case. The NCO may also direct that certain types of cases be sent from their respective centralized processing sites to the national office of the Department of Labor. We also note that, although cases can be transferred from the SWAs, the DOL has stated that the plan is to transfer cases initially from regional offices, as explained below.
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Locations of Backlog Reduction Centers
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As previously indicated in our June 18, 2004 MurthyBulletin article entitled, Labor Certification Update - 2004, available on MurthyDotCom, the DOL has stated that there will be two central processing sites. One will be in Philadelphia, PA, and the other will be in Dallas, TX. This backlog reduction plan will only apply to cases filed under the current procedures. The plan will not apply to cases that will be filed under PERM, when the PERM regulation is finalized. It is likely that PERM will not be published until the fall, and it is still expected that the implementation of PERM will not occur until 120 days after the PERM rule is published in the Federal Register.
©MurthyDotCom
We do not expect that all cases caught in the backlog will be sent immediately to the central processing sites. The NCO is permitted to send cases to these sites, but is not required to do so. As detailed in the earlier MurthyBulletin article, cited above, the DOL intends to send cases from the Philadelphia and Dallas federal regions to these centers first, followed by cases from the Atlanta, GA and Chicago, IL federal regions. Atlanta and Chicago are also expected to be the two future homes of centralized PERM processing centers. After those case transfers are complete, cases from other regions may be added. Since the NCO has discretion in this matter, however, this plan may change at any time.
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Timeframes for Completing Backlog Processing
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DOL officials have stated that the goal is to try and complete all LC and RIR backlog processing within 2 years of PERM's implementation. The rule itself, however, does not give a timeline for the completion of processing backlogged cases. The comments on the rule state that "the extent of centralized processing and the speed with which the current backlog will be reduced may vary based upon program priorities." Therefore, it may be some time before we can determine the effectiveness of this system and see any change in processing backlogs of labor certifications and RIR applications for permanent residency.
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Conclusion
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We at The Law Office of Sheela Murthy, P.C. will continue to closely monitor the law and procedures, as well as our own cases, for any changes that are tied to the centralized processing and backlog reduction. We, in turn, will pass that information along to MurthyDotCom and MurthyBulletin readers.
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What will happen wiht the 245I under RIR do they have to switch to PERM. I have a friend who is waiting for his labor certification.
Does he have to switch his thing to PERM to speed it up. Or does he just have to wait?Leave a comment:
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Labor Deppt has recently implemented PERM regulations for Labor Cert.
Below is dated May, 2002 proposal.
Let's hope that starting August 20th 2004 we will see increase in efficiency of processing those applications and elimination of backlogs.
Good luck,
E.
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copy-paste from: www.shusterman.com/perm502.html
Labor Department's Proposed
PERM Regulations
Law Offices of Carl Shusterman - Return to Homepage [www.shusterman.com]
[Federal Register: May 6, 2002 (Volume 67, Number 87)]
[Proposed Rules]
[Page 30465-30521]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr06my02-18]
[[Page 30465]]
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Part V
Department of Labor
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Employment and Training Administration
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20 CFR Parts 655 and 656
Labor Certification for the Permanent Employment of Aliens in the
United States; Implementation of New System; Proposed Rule
[[Page 30466]]
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DEPARTMENT OF LABOR
Employment and Training Administration
20 CFR Parts 655 and 656
RIN 1205-AA66
Labor Certification for the Permanent Employment of Aliens in the
United States; Implementation of New System
AGENCIES: Wage and Hour Division, Employment Standards Administration,
and Employment and Training Administration, Labor.
ACTION: Proposed rule; request for comments.
-----------------------------------------------------------------------
SUMMARY: The Department of Labor is proposing to amend its regulations
governing the filing and processing of labor certification applications
for the permanent employment of aliens in the United States to
implement a new system for filing and processing such applications. The
proposed rule would also amend the regulations governing the employer's
wage obligation under the H-1B program. The new system would require
employers to conduct recruitment before filing their applications
directly with an ETA application processing center on application forms
designed for automated screening and processing. State Workforce
Agencies (SWA's) would provide prevailing wage determinations to
employers. Employers would be required to place a job order with the
SWA which would be processed the same as any other job order placed by
employers. SWA's would no longer be the intake point for submission of
applications and would not be involved in processing the applications
as they are now in the present system. The combination of prefiling
recruitment, automated processing of applications, and elimination of
the role of the SWA's in the processing of applications will yield a
large reduction in the average time needed to process labor
certification applications and are expected to eliminate the need to
periodically institute special, resource intensive efforts to reduce
backlogs which have been a recurring problem.
DATES: Interested persons are invited to submit written comments on the
proposed rule on or before July 5, 2002.
ADDRESSES: Submit written comments to the Assistant Secretary for
Employment and Training, U.S. Department of Labor, 200 Constitution
Avenue, NW., Room C-4318, Washington, DC 20210, Attention: Dale
Ziegler, Chief, Division of Foreign Labor Certifications.
FOR FURTHER INFORMATION CONTACT: Denis M. Gruskin, Senior Specialist,
Division of Foreign Labor Certifications, Employment and Training
Administration, 200 Constitution Avenue, NW., Room C-4318, Washington,
DC 20210. Telephone: (202) 693-2953 (this is not a toll free number).
SUPPLEMENTARY INFORMATION:
I. Background
The process for obtaining a permanent labor certification has been
criticized as being complicated, time consuming and requiring the
expenditure of considerable resources by employers, SWA's and the
Federal Government. It can take up to two years or more to complete the
process for applications that are filed under the basic process and do
not utilize the more streamlined reduction in recruitment (RIR)
process. The reduction in recruitment process allows employers that
request RIR processing to conduct recruitment before filing their
applications and these applications are evaluated on the basis of such
recruitment.
The redesigned system we envision would require employers to
conduct recruitment before filing their applications. Employers would
be required to conduct both mandatory and alternative recruitment
steps. The alternative steps would be chosen by the employer from a
list of additional recruitment steps in the regulations. The employer
would not be required to submit any documentation with its application,
but would be expected to have assembled supporting documentation
specified in the regulations and would be required to provide it in the
event its application is selected for audit.
Employers would be required to submit their applications on forms
designed for automated processing to minimize manual intervention to an
ETA application processing center for automated screening and
processing. After an application has been determined to be acceptable
for filing, an automated system would review it based upon various
selection criteria that would allow applications to be identified for
potential audits before determinations could be made. In addition, some
applications would be randomly selected as a quality control measure
for an audit without regard to the results of the computer analysis.
A complete application would consist of two forms. An Application
for Permanent Labor Certification form (ETA Form 9089) and a Prevailing
Wage Determination Request (PWDR) form (ETA Form 9088). The application
form would require the employer to respond to 56 items. The majority of
the items on the application form would consist of attestations which
would require the employer to do no more than check ``yes'', ``no'', or
``NA'' (not applicable) as a response. These attestations and other
information required by the application form elicit information similar
to that required by the current labor certification process. For
example, the employer will have to attest to, such items as: whether
the employer provided notice of the application to the bargaining
representative or its employees; whether the alien beneficiary gained
any of the qualifying experience with the employer; whether the alien
is currently employed by the employer; whether a foreign language
requirement is required to perform the job duties; and whether the U.S.
applicants were rejected solely for lawful job related reasons. (The
term ``applicant'' is defined at Sec. 656.3 as an U.S. worker who is
applying for a job opportunity for which an employer has filed an
Application for Permanent Labor Certification (ETA Form 9089). The term
``U.S. Worker'' is also defined at Sec. 656.3.) The wage offered on the
application form would be required to be to equal to or greater than
the prevailing wage determination entered by the SWA on the PWDR form
described below. Comments are requested on ETA forms 9088 and 9089
which are published at the end of this NPRM.
The application form, however, would not require the employer to
provide a job description, or detailed job requirements. The job
description and job requirements would be entered on the PWDR form,
which the employer would be required to submit to the SWA for a
prevailing wage determination. The SWA would enter its prevailing wage
determination on the form and return it to the employer with its
endorsement. The employer would be required to submit both forms to an
ETA servicing office for processing and a determination.
The employer would not be required to provide any supporting
documentation with its application but would be required to furnish
supporting documentation to support the attestations and other
information provided on the form if the application was selected for an
audit. The standards used in adjudicating applications under the new
system would be substantially the same as those used in arriving at a
determination in the current system.
[[Page 30467]]
The determination would still be based on: whether the employer has met
the requirements of the regulations; whether there are insufficient
workers who are able, willing, qualified and available; and whether the
employment of the alien will have an adverse effect on the wages and
working conditions of U.S. workers similarly employed.
SWA's would no longer be the intake point for submission of
applications for permanent alien employment certification and would not
be required to be the source of recruitment and referral of U.S.
workers as they are in the present system. The required role of SWA's
in the redesigned permanent labor certification process would be
limited to providing prevailing wage determinations (PWD). Employers
would be required to submit a PWDR form to SWA's to obtain a PWD before
filing their applications with an ETA application processing center.
The SWA's would, as they do under the current process, evaluate the
particulars of the employer's job offer, such as the job duties and
requirements for the position and the geographic area in which the job
is located, to arrive at a PWD.
The combination of prefiling recruitment, automated processing of
applications, and elimination of the SWA's' required role in the
recruitment and referral of U.S. workers would yield a large reduction
in the average time needed to process labor certification applications
and would also eliminate the need to institute special, resource
intensive efforts to reduce backlogs which have been a recurring
problem.
The proposed labor certification application and PWDR have been
designed to be machine readable or directly completed in a web-based
environment. Initially, depending upon whether or not a processing fee
is implemented, applications will be on forms which can be submitted by
facsimile transmission or by mail and will be subject to an initial
acceptability check to determine whether the application can be
processed. If a fee for processing the application is required, all
applications will have to be submitted by mail. (However, as indicated
in section IV.E, of the preamble below, the Department cannot
promulgate and implement a fee charging rule until Congress passes the
necessary authorizing legislation.) In the long-term, ETA will be
exploring the possibility of further automating the process so that
applications and PWDR's may be submitted electronically to an
application processing center whether or not a fee is required to be
submitted with an application.
After an application, including the PWDR, has been determined to be
acceptable for filing, a computer system will review the application
based upon various selection criteria that will allow more problematic
applications to be identified for audit. Additionally, we anticipate
that some applications will be randomly selected for an audit without
regard to the results of the computer analysis as a quality control
measure. If an audit has not been triggered by the information provided
on the application or because of a random selection, the application
will be certified and returned to the employer. The employer may then
submit the certified application to the Immigration and Naturalization
Service (INS) in support of an employment-based I-140 petition. We
anticipate that if an application is not selected for an audit, an
employer will have a computer-generated decision within 21 calendar
days of the date the application was initially filed.
If an application is selected for an audit, the employer will be
notified and required to submit, in a timely manner, documentation
specified in the regulations to verify the information stated in or
attested to on the application. Upon timely receipt of an employer's
audit documentation, the application will be distributed to the
appropriate ETA regional office where it will be reviewed by the
regional Certifying Officer.
After an audit has been completed, the proposed rule provides that
the Certifying Officer can certify the application; deny the
application; or order supervised recruitment. If the audit
documentation is complete and consistent with the employer's statements
and attestations contained in the application, the application will be
certified and returned to the employer. If the audit documentation is
incomplete, is inconsistent with the employer's statements and/or
attestations contained in the application, or if the application is
otherwise deficient in some material respect, the application will be
denied and a notification of denial with the reasons therefor will be
issued to the employer. If an application is denied, the employer will
be able to request review of the Certifying Officer's decision by the
Board of Alien Labor Certification Appeals (Board or BALCA).
Additionally, on any application selected for an audit, the regional
Certifying Officer will have the authority to request additional
information before making a final determination or order supervised
recruitment for the employer's job opportunity in any case where
questions arise regarding the adequacy of the employer's test of the
labor market.
The supervised recruitment that may be required by the regional
Certifying Officer, is similar to the current non-RIR regulatory
recruitment scheme under the current basic process which requires
placement of an advertisement in conjunction with a 30-day job order by
the employer. The recruitment, however, will be supervised by ETA
regional offices instead of the SWA's. At the completion of the
supervised recruitment efforts, the employer will be required to
document in a recruitment report that such efforts were unsuccessful,
including the lawful, job-related reasons for not hiring any U.S.
workers who applied for the position. After a review of the employer's
documentation, the regional Certifying Officer will either certify or
deny the application. In all instances in which an application is
denied, the denial notification will set forth the deficiencies upon
which the denial is based. The employer would be able to seek
administrative-judicial review of a denial.
II. Statutory Standard
Before the Immigration and Naturalization Service (INS) may approve
petition requests and the Department of State may issue visas and admit
certain immigrant aliens to work permanently in the United States, the
Secretary of Labor must first certify to the Secretary of State and to
the Attorney General that:
(a) There are not sufficient United States workers who are able,
willing, qualified, and available at the time of the application for a
visa and admission into the United States and at the place where the
alien is to perform the work; and
(b) The employment of the alien will not adversely affect the wages
and working conditions of similarly employed United States workers. (8
U.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
the alien will not adversely affect the wages and working conditions of
similarly employed U.S. workers, DOL so certifies to the INS and to the
Department of State, by issuing a permanent alien labor certification.
If DOL cannot make one or both of the above findings, the
application for permanent alien employment certification is denied. DOL
may be unable to make the two required
[[Page 30468]]
findings for one or more reasons, including:
(a) The employer has not adequately recruited U.S. workers for the
job offered to the alien, or has not followed the proper procedural
steps in 20 CFR part 656.
(b) The employer has not met its burden of proof under section 291
of the Immigration and Nationality Act (INA or Act.) (8 U.S.C. 1361),
that is, the employer has not submitted sufficient evidence of its
attempts to obtain available U.S. workers, and/or the employer has not
submitted sufficient evidence that the wages and working conditions
which the employer is offering will not adversely affect the wages and
working conditions of similarly employed U.S. workers.
III. Current Department of Labor Regulations
The Department of Labor has promulgated regulations, at 20 CFR part
656, governing the labor certification process for the permanent
employment of immigrant aliens in the United States. Part 656 was
promulgated under section 212(a)(14) of the INA (now at section
212(a)(5)(A)). 8 U.S.C. 1182(a)(5)(A).
The regulations at 20 CFR part 656 set forth the factfinding
process designed to develop information sufficient to support the
granting or denial of a permanent labor certification. These
regulations describe the nationwide system of public State Workforce
Agency offices available to assist employers in finding available U.S.
workers and how the factfinding process is utilized by DOL as the basis
of information for the certification determination. See also 20 CFR
parts 651 through 658, and the Wagner-Peyser Act (29 U.S.C. Chapter
4B).
Part 656 also sets forth the responsibilities of employers who
desire to employ immigrant aliens permanently in the United States.
Such employers are required to demonstrate that they have attempted to
recruit U.S. workers through advertising, through the Federal-State
Employment Service/One-Stop System, and by other specified means. The
purpose of the recruitment process is to assure that there is an
adequate test of the availability of U.S. workers to perform the work
and to ensure that aliens are not employed under conditions that would
adversely affect the wages and working conditions of similarly employed
U.S. workers.
In brief, the current process for obtaining a labor certification
requires employers to actively recruit U.S. workers in good faith for a
period of at least 30 days for the job openings for which aliens are
sought. The employer's job requirements must conform to the regulatory
standards (e.g., those normally required for the job), and employers
must offer prevailing wages and working conditions for the occupation
in the area in which the job is located. Further, employers may not
favor aliens or tailor the job requirements to any particular alien's
qualifications.
During the 30-day recruitment period, employers are required to
place a three-day help-wanted advertisement in a newspaper of general
circulation, or a one-day advertisement in a professional, trade, or
business journal, or in an appropriate ethnic publication. Employers
are also required to place a 30-day job order with the local office of
the State Workforce Agency in the state in which the employer seeks to
employ the alien. Alternatively, if employers believe they have already
conducted adequate recruitment efforts seeking qualified U.S. workers
at prevailing wages and working conditions through sources normal to
the occupation and industry, they may request a waiver of the otherwise
mandatory 30-day recruitment efforts. This waiver process is generally
referred to as involving ``Reduction in Recruitment'' applications. If
the employer does not request RIR processing or if the request is
denied, the help-wanted advertisements which are placed in conjunction
with the mandatory thirty-day recruitment effort direct job applicants
to either report in person to the State Workforce Agency office or to
submit resumes to the State Workforce Agency.
Job applicants are either referred directly to the employer or
their resumes are sent to the employer. The employer then has 45 days
to report to the State Workforce Agency the lawful, job-related reasons
for not hiring any U.S. worker referred. If the employer hires a U.S.
worker for the job opening, the process stops at that point, unless the
employer has more than one opening, in which case the application may
continue to be processed. If, however, the employer believes that able,
willing and qualified U.S. workers are not available to take the job,
the application, together with the documentation of the recruitment
results and prevailing wage information, are sent to one of the
Department's regional offices. There, it is reviewed and a
determination is made as to whether or not to issue the labor
certification based upon the employer's compliance with the regulations
governing the program. If the Department of Labor determines that there
are no able, willing, qualified and available U.S. workers, and that
the employment of the alien will not adversely affect the wages and
working conditions of similarly employed U.S. workers, we so certify to
the INS and the DOS, by issuing a permanent labor certification. See 20
CFR part 656; see also section 212(a)(5)(A) of the Immigration and
Nationality Act, as amended (INA).
IV. Discussion of Regulatory Amendments
A. Definitions
We have made several changes to the definitions of the terms used
in part 656. With the exception of the change of the definition of the
term ``employer,'' substantive changes in definitions are discussed
along with substantive changes in the relevant regulatory provisions.
The definition of employer would be amended to reflect the
longstanding policy articulated in Technical Assistance Guide No. 656
Labor Certifications, issued in 1981 that:
Persons who are temporarily in the United States, such as
foreign diplomats, intracompany transferees, students, exchange
visitors, and representatives of foreign information media cannot be
employers for the purpose of obtaining a labor certification for
permanent employment; and
Job opportunities consisting solely of job duties that
will be performed totally outside the United States, its territories or
possessions cannot be the subject of a permanent application for alien
employment certification.
B. Schedule A
1. General
Schedule A is a list of occupations for which DOL has precertified
job opportunities, having made determinations that qualified U.S.
workers are not able, willing, and available, and that alien employment
will not adversely affect the wages and working conditions of similarly
employed U.S. workers. See 20 CFR 656.10 and 656.22. Certification
applications are filed with INS or the Department of State, and those
agencies determine whether an individual application has been
precertified by DOL.
2. Professional Nurses
We have conformed the general description of aliens seeking
Schedule A labor certification as professional nurses at
Sec. 656.5(a)(1) (currently Sec. 656.10(a)(2)) to the procedures at
Sec. 656.15(c)(2)
[[Page 30469]]
(currently Sec. 656.22(c)(2)) to indicate that only a permanent license
can be used to satisfy the alternative requirement to passing the
Commission on Graduates of Foreign Nursing Schools exam that the alien
hold a full and unrestricted license to practice professional nursing
in the State of intended employment. INS has informed us that it has
received applications with temporary licenses or permits filed as
supporting documentation to Schedule A applications. Our intent in
promulgating the current Schedule A procedures for professional nurses
was to put an end to the pre-1981 practice whereby some nurses entered
the United States on temporary licenses and permits, but failed to pass
State examinations for a permanent license. As we have stated with
respect to this issue, ``it is not in the public interest to grant
certification to nurses who will not be able to practice their
profession or who will likely limit or otherwise adversely affect the
wages or job opportunities for U.S. workers in lower-skilled jobs.'' 45
FR 83926, 83927 (December 19, 1980); see also 20 CFR 656.22(c)(2)
(1991).
To be consistent with the description of the other occupational
groups on Schedule A, the definition of professional nurse would be
moved from the section containing the definitions, at Sec. 656.3 in the
current rule, to the section providing a general description of
Schedule A, at Sec. 656.5 in the proposed rule.
3. Aliens of Exceptional Ability In the Performing Arts
The amendments would remove aliens of exceptional ability in the
performing arts from the special handling procedures and include them
on Schedule A as a separate category. The employer or the alien will
have to submit to INS the documentation currently required by 20 CFR
656.21a(a)(1)(iv)(A)(1) through (a)(1)(iv)(A)(6) of the current
regulations. Current recruitment requirements consisting of an
advertisement or a statement from the union, if customarily used as a
recruitment source in the area or industry, will no longer be required.
As a practical matter, under 20 CFR 656.21a, once we determined that an
alien was of exceptional ability in the performing arts, certification
was issued in virtually all such cases. INS can make this determination
as readily as DOL. Such determinations are similar to determinations
Immigration Officers make for aliens of exceptional ability in the
sciences and arts under Group II of Schedule A. In both cases a
determination has to be made whether or not the alien's work during the
past year and intended work in the United States will require
exceptional ability.
Aliens of exceptional ability in the sciences or arts comprise
Group II of Schedule A. We have delegated the determination whether an
alien beneficiary of a labor certification application qualifies for
Schedule A to the Immigration and Naturalization Service (INS).
Schedule A applications are filed with the INS; not with the Department
of Labor. The current and proposed regulations provide that the
Schedule A determination of the INS shall be conclusive and final.
Therefore the employer may not make use of the administrative review
procedures in Part 656. The INS, however, in the process of making its
Schedule A determination may request an advisory opinion as to whether
an alien is qualified for the Schedule A occupation from the Division
of Foreign Labor Certifications.
We have also concluded, based on the small number of applications
submitted on behalf of aliens of exceptional ability in the performing
arts and experience in evaluating the required recruitment reports
submitted in conjunction with such applications, that there are few
performing artists, whether alien beneficiaries or U.S. workers, who
can satisfy the standards to qualify as an alien of exceptional ability
in the performing arts as defined in the regulations. Consequently, the
admission of the few aliens who may qualify as aliens of exceptional
ability in the performing arts will not have an adverse effect on the
wages and working conditions of U.S. performing artists.
C. Schedule B
Schedule B is a list of occupations for which we determined that
U.S. workers are generally able, willing, qualified and available, and
that the wages and working conditions of United States workers
similarly employed will generally be adversely affected by the
employment of aliens in the United States in such occupations. (See 20
CFR 656.11(a) and 23(a) and (b)). The current regulations require that
a waiver must be obtained to receive certification of Schedule B jobs.
A request for a waiver must be filed along with the application to
obtain a certification for an occupation listed on Schedule B.
We propose to eliminate Schedule B, because program experience
indicates that it has not contributed any measurable protection to U.S.
workers. Once an employer files a Schedule B waiver, the application is
processed the same as any other application processed under the non-
RIR, basic process. Whether or not an application for a Schedule B
occupation is certified is dependent on the results of the basic labor
market test detailed in Sec. 656.21 of the current regulations.
D. General Instructions
1. Expansion of Posting Requirement
The posting regulation at Sec. 656.10(d)(ii) in the proposed rule
has been expanded to require in addition to a posting a notice of the
Application for Permanent Labor Certification (ETA Form 9089), that the
employer must publish the posting in any and all in-house media,
whether electronic or printed, in accordance with the normal procedures
generally used in recruiting for other positions in the employer's
organization. Employers must also be prepared to provide documentation
of the posting requirements in the event of an audit.
2. Ability to Pay and Place the Alien on the Payroll
The current regulations and Application for Alien Employment
Certification form (ETA 750) require that the employer document that it
``has enough funds available to pay the wage or salary offered the
alien'', and that ``(t)he employer will be able to place the alien on
the payroll on or before the date of the alien's proposed entrance into
the United States''. We propose to eliminate these provisions from the
regulations and the Application for Alien Employment Certification
form, since our examination of these issues is a duplication of the
examination of the employer's financial standing and the ability to
place the alien on the payroll undertaken by the INS when it processes
the employer's petition. Moreover, these provisions are also
unnecessary because the underlying issues could still be addressed
because we are proposing to retain the provision in the current
regulations that ``(t)he job opportunity has been and is clearly open
to any qualified U.S. worker.'' If the employer is not in a position to
pay the alien and/or place him or her on the payroll, it is not
offering a job opportunity that is clearly open to U.S. workers.
E. Fees
The Appendix to the FY 2001 Budget of the United States states that
``(l)egislation will be proposed that would authorize the Secretary of
Labor to collect fees from employers for the certification of certain
aliens as eligible workers under the Immigration and Nationality Act.''
Although specific legislation has not been proposed to
[[Page 30470]]
implement the fee charging language in the President's budget, the
proposed rule contains a provision outlining how fee charging would be
implemented if it becomes law. If this occurs, the final rule would
require employers to submit a fee with their applications. A charge of
$30.00 would be imposed if a check in payment of the fee is not honored
by the financial institution on which it is drawn. The existence of any
outstanding ``insufficient funds'' checks would be grounds for
returning applications for alien employment certification to the
employer as unacceptable for processing. Receipt of any ``insufficient
funds'' checks while the application is being processed would be
grounds for denying the application. Receipt of any ``insufficient
funds'' checks after an application has been certified would be grounds
for revoking the certification. If an application is returned to the
employer because it was incomplete, the employer would be able to
request a refund of the fee or resubmit the application.
Fees would also be required for Schedule A and Sheepherder
applications which are submitted to INS for adjudication.
If legislation authorizing the Secretary of Labor to collect fees
from employers for the certification of immigrant workers is not passed
by the time a Final Rule is to be published, the proposed fee
provisions will not be included in the Final Rule.
F. Applications for Labor Certification for Schedule A Occupations
1. PWDR Required to File Schedule A Applications With INS
Employers would be required to submit the required processing fee,
a completed PWDR endorsed by the SWA, and a completed Application for
Alien Employment Certification form to the appropriate INS office. The
current Application for Alien Employment Certification form (ETA 750)
requires employers to enter the offered rate of pay and to certify that
the wage offered equals or exceeds the prevailing wage. Since the
application form no longer contains the offered wage, employers would
be required to submit a completed and endorsed PWDR as well as the
application form in Schedule A cases to the appropriate INS office.
2. Aliens of Exceptional Ability in the Performing Arts
As explained above, the proposed rule would remove aliens of
exceptional ability in the performing arts from the special handling
procedures and include them on Schedule A and the documentation
currently required by 20 CFR 656.21a(a)(1)(iv)(A)(1) through
(a)(1)(iv)(A)(6) of the regulations would be required to be submitted
to INS by the employer or the alien beneficiary.
G. Labor Certification Applications for Sheepherders
Procedures for filing applications for Sheepherders in the current
regulations are in the special handling procedures at Sec. 656.21(a).
The new system does not contain a section on special handling
procedures, since we will handle all applications submitted to the
Department in the same way. Sheepherder applications will continue to
be submitted to INS along with the required processing fee. Employers
would have to submit to the appropriate INS officer in addition to the
processing fee:
A completed Application for Alien Employment Certification
form;
A completed PWDR endorsed by the SWA; and
A signed letter or letters from all U.S. employers who
have employed the alien as a sheepherder during the immediately
preceding 36 months, attesting that the alien has been employed in the
United States lawfully and continuously as a sheepherder, for at least
33 of the immediately preceding 36 months.
Employers that cannot not meet the requirements to file their
applications for sheepherders with INS will be able to file their
applications under the revised basic process described below.
H. Basic Process
1. Filing Applications
Employers would be required to file a completed Application for
Alien Employment Certification form and a PWDR endorsed by the SWA with
a designated ETA application processing center. Supporting
documentation that may be requested by the Certifying Officer in an
audit letter would not be filed with the application, but the employer
would be expected to be able to provide required supporting
documentation if its application were selected for audit.
The new system would limit the role of the SWA in the permanent
labor certification process to providing PWD's. Prevailing wage
determinations are currently made by SWA's after the application has
been filed as part of the normal process of reviewing an application
and informing the employer of deficiencies therein. In the new process,
the employer would still be required to obtain a PWD from the SWA,
although the timing would change from a post-filing action to a pre-
filing action.
Under the proposed regulations, before filing a permanent
application with an ETA application processing center, the employer
would submit a PWDR to the SWA. (The ``machine readable'' PWDR would
also be used to submit prevailing wage requests for the H-1B and H-2B
programs.) The SWA would issue a PWD on the PWDR form and return it to
the employer. The fully executed PWDR form would become part of the new
application form filed at an ETA application processing center.
2. Processing
Computers would do an initial analysis of the information provided
on the ``machine readable'' application form. Applications that could
not be accepted for processing because certain information that was
requested by the application form was not provided will be returned to
the employer. Applications accepted for processing would be screened
and would be certified, denied or selected for audit.
Information on the form may trigger a denial of the application or
a request for an audit by Federal regional office staff. The
application may also be selected for audit on a random basis as a
quality control measure. If an application is not denied or selected
for audit we anticipate that the application will be certified and
returned to the employer within 21 days.
If the application is selected for audit, we will send the employer
a letter with instructions to furnish required documentation supporting
the information provided on the application form within 21 calendar
days of the date of the request. If the requested information is not
received in a timely fashion, the application will be denied.
3. Filing Date
Applications accepted for processing will be date stamped.
Applications which are not accepted for processing and returned to
employer will not be date stamped to minimize the administrative
burden, and to discourage employers from filing an application merely
to obtain a filing date, which under the regulations of the INS and
Department of State becomes the priority date for processing petitions
and visa applications, respectively.
Employers will be able to withdraw applications for alien
employment certification filed under the current regulations and file
an application for the identical job opportunity involved in the
withdrawn application under the proposed rule without loss of the
filing date.
[[Page 30471]]
4. Required Prefiling Recruitment
a. Professional occupations.
Exclusively for the purpose of the permanent labor certification
program, the proposed rule defines a professional occupation as an
occupation for which the attainment of a bachelor's or higher degree is
a usual requirement for the occupation. Employers would be required to
adequately test the labor market at prevailing wages and working
conditions during the 6-month period preceding the filing of the
application. The recruitment steps consist of prescribed mandatory and
alternative steps and are designed to reflect what we believe, based on
our program experience, are the recruitment methods that are most
appropriate to the occupation. The mandatory steps for professional
occupations consist of:
Placement of a job order with the SWA serving the area of
intended employment;
Placement of two advertisements in the Sunday edition of
the newspaper of general circulation most appropriate to the occupation
and the workers likely to apply for the job opportunity in the area of
intended employment; and
Placement of an advertisement in an appropriate journal in
lieu of one Sunday advertisement if the position involves experience
and an advanced degree.
Under the current system, the employer may advertise, when a
newspaper of general circulation is designated as the appropriate
advertising medium, in any newspaper of general circulation. However,
our experience has shown that some employers routinely place newspaper
advertisements in those newspapers with the lowest circulation and that
these publications are often the least likely to be read by qualified
U.S. workers. Therefore, in order for the employer's job opening to
receive appropriate exposure, the proposed regulation requires that the
mandatory advertisements appear in the newspaper of general circulation
most appropriate to the occupation and the workers most likely to apply
for the job opportunity in the area of intended employment. For
example, in a relatively large metropolitan area such as Philadelphia,
Pennsylvania or Washington, DC, it would not be appropriate to place an
advertisement for a computer professional in a suburban newspaper of
general circulation since workers interested in professional jobs
consult the metropolitan newspapers in the area of intended employment
with the largest circulation rather than the suburban newspapers of
general circulation. On the other hand, it would be appropriate to
advertise in a suburban newspaper of general circulation for
nonprofessional occupations, such as jewelers, houseworkers or drivers.
If the position involves experience and an advanced degree, the
proposed regulation requires that the employer place one advertisement
in an appropriate professional journal in lieu of one Sunday
advertisement. To assure that employers make a current and complete
test of the labor market, the mandatory recruitment steps must be
conducted at least 30 days, but no more than 180 days, before the
application is filed. In addition, the mandatory advertisements must be
placed at least 28 days apart.
The employer, as indicated above, would also be required to select
three additional pre-filing recruitment steps from among commonly used
professional recruitment channels, such as job fairs, job search web
sites and private employment agencies. Unlike the mandatory steps, one
of the additional recruitment steps may consist solely of activity that
takes place within 30 days of the filing of the application.
We are publishing in Appendix A to the preamble a list of
occupations for which a bachelor's or higher degree is a usual
requirement. The basic list was developed by the Bureau of Labor
Statistics (BLS) and was based on its analyses of occupations' usual
education and training requirements conducted to produce the
Occupational Outlook Handbook. The Employment and Training
Administration developed a crosswalk to the O*NET, Standard
Occupational Classification (SOC) codes. The occupational titles, along
with the relevant O*Net-SOC codes and codes which indicate whether the
usual degree requirement for the occupation is for a professional
degree, doctoral degree, master's degree, work experience plus a
bachelor's or higher degree, or a bachelor's degree, are presented in
the list we are publishing in Appendix A. We do not plan to codify
Appendix A. Additional information about the occupations, including
their definitions, can be obtained from O*Net online at http://
online.onetcenter.org. Commenters are invited to submit comments on the
appropriateness of the occupations included on the list published in
Appendix A.
b. Nonprofessional Occupations
The proposed rule defines a non-professional occupation as any
occupation for which the attainment of a bachelor's or higher degree is
not a usual requirement for the occupation. Recruitment for occupations
that normally do not require a baccalaureate or higher degree, i.e.,
non-professional occupations, consists of three mandatory steps: two
newspaper advertisements and placement of a job order with the SWA
serving the area of intended employment. All three recruitment steps
must occur at least 30 days but no more than 180 days, before filing
the application. Like recruitment for professional occupations, the
advertisements must be placed at least 28 days apart, and must run in
the Sunday edition of the newspaper of general circulation most
appropriate to the occupation and the workers likely to apply for the
job opportunity.
The advertising requirements for both professional and
nonprofessional occupations are more extensive than under the current
regulations. The difference in advertising requirements between
professional and nonprofessional occupations is based on the
Department's experience as to how employers advertise for these two
broad categories of workers. The Department is interested in receiving
comments on the more extensive advertising requirements, and the
different advertising requirements for professional and nonprofessional
occupations.
5. Newspaper Advertising Requirements
The proposed requirements for the newspaper advertisements are
modeled after current regulatory requirements at 20 CFR 656.21(g),
except the advertisement must: (1) identify the employer; (2) direct
potential job seekers to the employer and not the SWA; and (3) provide
a description of the job and its geographical location that is
sufficiently detailed to fully inform U.S. workers of the particular
job opportunity. Additionally, the wage must equal or exceed the
prevailing wage entered on the PWDR by the SWA. Any job requirements
listed in the advertisement may not exceed those listed on the PWDR.
6. Recruitment Report
The employer will be required to maintain documentation of the
recruitment efforts it has undertaken and the results thereof,
including the lawful job-related reasons for rejecting U.S. workers who
applied for the job. Recruitment reports may be required in the cases
selected for audit and are required in every case in which employers
conduct supervised recruitment. Under the current regulations,
employers have always had
[[Page 30472]]
to report on the lawful job-related reasons why each U.S. worker
applying for the job or referred to the employer was not hired. See 20
CFR 656.21(b)(6) in the current regulations. The proposed regulation
provides that the employer must prepare a summary report describing the
recruitment steps taken and the results, including the number of U.S.
applicants, the number of job openings in the job opportunity, the
number of applicants hired and, if applicable, the number of U.S.
workers rejected summarized by the lawful job reasons for such
rejections. The Certifying Officer, however, after reviewing the
employer's recruitment report may request the resumes or applications
of the U.S. workers who were rejected sorted by the reasons for
rejection provided by the employer in its recruitment report.
The proposed rule governing the content of recruitment reports,
required for recruitment conducted prior to filing the application by
the employer or for supervised recruitment that may be required by the
Certifying Officer, would also clarify our position regarding
``qualified'' U.S. workers. We have added the requirements currently
found at Sec. 656.24(b)(2)(ii) to the requirements for the recruitment
reports required to be submitted by employers on the results of their
prefiling and supervised recruitment of U.S. workers. The recruitment
requirements thus provide that a U.S. worker may be qualified for the
employer's job opportunity even if he/she does not meet every one of
the employer's job requirements. The U.S. worker who, by education,
training, experience, or a combination thereof, qualifies by being able
to perform, in the normally accepted manner, the duties involved in the
occupation may not be rejected for failing to meet a specific job
requirement. In addition, the U.S. worker is considered qualified, if
he/she can acquire during a reasonable period of on-the-job-training,
the skills necessary to perform as customarily performed by other U.S.
workers similarly employed, the duties involved in the occupation.
7. Job Requirements
a. Business Necessity Standard and Job Duties
The requirement that the employer's job requirements must be those
normally required for jobs in the United States would be retained in
the new system. Employers, however, would not be able to justify job
requirements that exceed those that are normal by use of business
necessity. The business necessity standard, curreLeave a comment:
-
New PERM regulations for Labor Cert.
Labor Deppt has recently implemented PERM regulations for Labor Cert.
Below is dated May, 2002 proposal.
Let's hope that starting August 20th 2004 we will see increase in efficiency of processing those applications and elimination of backlogs.
Good luck,
E.
_______________________________
copy-paste from: www.shusterman.com/perm502.html
Labor Department's Proposed
PERM Regulations
Law Offices of Carl Shusterman - Return to Homepage [www.shusterman.com]
[Federal Register: May 6, 2002 (Volume 67, Number 87)]
[Proposed Rules]
[Page 30465-30521]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr06my02-18]
[[Page 30465]]
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Part V
Department of Labor
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Employment and Training Administration
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20 CFR Parts 655 and 656
Labor Certification for the Permanent Employment of Aliens in the
United States; Implementation of New System; Proposed Rule
[[Page 30466]]
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DEPARTMENT OF LABOR
Employment and Training Administration
20 CFR Parts 655 and 656
RIN 1205-AA66
Labor Certification for the Permanent Employment of Aliens in the
United States; Implementation of New System
AGENCIES: Wage and Hour Division, Employment Standards Administration,
and Employment and Training Administration, Labor.
ACTION: Proposed rule; request for comments.
-----------------------------------------------------------------------
SUMMARY: The Department of Labor is proposing to amend its regulations
governing the filing and processing of labor certification applications
for the permanent employment of aliens in the United States to
implement a new system for filing and processing such applications. The
proposed rule would also amend the regulations governing the employer's
wage obligation under the H-1B program. The new system would require
employers to conduct recruitment before filing their applications
directly with an ETA application processing center on application forms
designed for automated screening and processing. State Workforce
Agencies (SWA's) would provide prevailing wage determinations to
employers. Employers would be required to place a job order with the
SWA which would be processed the same as any other job order placed by
employers. SWA's would no longer be the intake point for submission of
applications and would not be involved in processing the applications
as they are now in the present system. The combination of prefiling
recruitment, automated processing of applications, and elimination of
the role of the SWA's in the processing of applications will yield a
large reduction in the average time needed to process labor
certification applications and are expected to eliminate the need to
periodically institute special, resource intensive efforts to reduce
backlogs which have been a recurring problem.
DATES: Interested persons are invited to submit written comments on the
proposed rule on or before July 5, 2002.
ADDRESSES: Submit written comments to the Assistant Secretary for
Employment and Training, U.S. Department of Labor, 200 Constitution
Avenue, NW., Room C-4318, Washington, DC 20210, Attention: Dale
Ziegler, Chief, Division of Foreign Labor Certifications.
FOR FURTHER INFORMATION CONTACT: Denis M. Gruskin, Senior Specialist,
Division of Foreign Labor Certifications, Employment and Training
Administration, 200 Constitution Avenue, NW., Room C-4318, Washington,
DC 20210. Telephone: (202) 693-2953 (this is not a toll free number).
SUPPLEMENTARY INFORMATION:
I. Background
The process for obtaining a permanent labor certification has been
criticized as being complicated, time consuming and requiring the
expenditure of considerable resources by employers, SWA's and the
Federal Government. It can take up to two years or more to complete the
process for applications that are filed under the basic process and do
not utilize the more streamlined reduction in recruitment (RIR)
process. The reduction in recruitment process allows employers that
request RIR processing to conduct recruitment before filing their
applications and these applications are evaluated on the basis of such
recruitment.
The redesigned system we envision would require employers to
conduct recruitment before filing their applications. Employers would
be required to conduct both mandatory and alternative recruitment
steps. The alternative steps would be chosen by the employer from a
list of additional recruitment steps in the regulations. The employer
would not be required to submit any documentation with its application,
but would be expected to have assembled supporting documentation
specified in the regulations and would be required to provide it in the
event its application is selected for audit.
Employers would be required to submit their applications on forms
designed for automated processing to minimize manual intervention to an
ETA application processing center for automated screening and
processing. After an application has been determined to be acceptable
for filing, an automated system would review it based upon various
selection criteria that would allow applications to be identified for
potential audits before determinations could be made. In addition, some
applications would be randomly selected as a quality control measure
for an audit without regard to the results of the computer analysis.
A complete application would consist of two forms. An Application
for Permanent Labor Certification form (ETA Form 9089) and a Prevailing
Wage Determination Request (PWDR) form (ETA Form 9088). The application
form would require the employer to respond to 56 items. The majority of
the items on the application form would consist of attestations which
would require the employer to do no more than check ``yes'', ``no'', or
``NA'' (not applicable) as a response. These attestations and other
information required by the application form elicit information similar
to that required by the current labor certification process. For
example, the employer will have to attest to, such items as: whether
the employer provided notice of the application to the bargaining
representative or its employees; whether the alien beneficiary gained
any of the qualifying experience with the employer; whether the alien
is currently employed by the employer; whether a foreign language
requirement is required to perform the job duties; and whether the U.S.
applicants were rejected solely for lawful job related reasons. (The
term ``applicant'' is defined at Sec. 656.3 as an U.S. worker who is
applying for a job opportunity for which an employer has filed an
Application for Permanent Labor Certification (ETA Form 9089). The term
``U.S. Worker'' is also defined at Sec. 656.3.) The wage offered on the
application form would be required to be to equal to or greater than
the prevailing wage determination entered by the SWA on the PWDR form
described below. Comments are requested on ETA forms 9088 and 9089
which are published at the end of this NPRM.
The application form, however, would not require the employer to
provide a job description, or detailed job requirements. The job
description and job requirements would be entered on the PWDR form,
which the employer would be required to submit to the SWA for a
prevailing wage determination. The SWA would enter its prevailing wage
determination on the form and return it to the employer with its
endorsement. The employer would be required to submit both forms to an
ETA servicing office for processing and a determination.
The employer would not be required to provide any supporting
documentation with its application but would be required to furnish
supporting documentation to support the attestations and other
information provided on the form if the application was selected for an
audit. The standards used in adjudicating applications under the new
system would be substantially the same as those used in arriving at a
determination in the current system.
[[Page 30467]]
The determination would still be based on: whether the employer has met
the requirements of the regulations; whether there are insufficient
workers who are able, willing, qualified and available; and whether the
employment of the alien will have an adverse effect on the wages and
working conditions of U.S. workers similarly employed.
SWA's would no longer be the intake point for submission of
applications for permanent alien employment certification and would not
be required to be the source of recruitment and referral of U.S.
workers as they are in the present system. The required role of SWA's
in the redesigned permanent labor certification process would be
limited to providing prevailing wage determinations (PWD). Employers
would be required to submit a PWDR form to SWA's to obtain a PWD before
filing their applications with an ETA application processing center.
The SWA's would, as they do under the current process, evaluate the
particulars of the employer's job offer, such as the job duties and
requirements for the position and the geographic area in which the job
is located, to arrive at a PWD.
The combination of prefiling recruitment, automated processing of
applications, and elimination of the SWA's' required role in the
recruitment and referral of U.S. workers would yield a large reduction
in the average time needed to process labor certification applications
and would also eliminate the need to institute special, resource
intensive efforts to reduce backlogs which have been a recurring
problem.
The proposed labor certification application and PWDR have been
designed to be machine readable or directly completed in a web-based
environment. Initially, depending upon whether or not a processing fee
is implemented, applications will be on forms which can be submitted by
facsimile transmission or by mail and will be subject to an initial
acceptability check to determine whether the application can be
processed. If a fee for processing the application is required, all
applications will have to be submitted by mail. (However, as indicated
in section IV.E, of the preamble below, the Department cannot
promulgate and implement a fee charging rule until Congress passes the
necessary authorizing legislation.) In the long-term, ETA will be
exploring the possibility of further automating the process so that
applications and PWDR's may be submitted electronically to an
application processing center whether or not a fee is required to be
submitted with an application.
After an application, including the PWDR, has been determined to be
acceptable for filing, a computer system will review the application
based upon various selection criteria that will allow more problematic
applications to be identified for audit. Additionally, we anticipate
that some applications will be randomly selected for an audit without
regard to the results of the computer analysis as a quality control
measure. If an audit has not been triggered by the information provided
on the application or because of a random selection, the application
will be certified and returned to the employer. The employer may then
submit the certified application to the Immigration and Naturalization
Service (INS) in support of an employment-based I-140 petition. We
anticipate that if an application is not selected for an audit, an
employer will have a computer-generated decision within 21 calendar
days of the date the application was initially filed.
If an application is selected for an audit, the employer will be
notified and required to submit, in a timely manner, documentation
specified in the regulations to verify the information stated in or
attested to on the application. Upon timely receipt of an employer's
audit documentation, the application will be distributed to the
appropriate ETA regional office where it will be reviewed by the
regional Certifying Officer.
After an audit has been completed, the proposed rule provides that
the Certifying Officer can certify the application; deny the
application; or order supervised recruitment. If the audit
documentation is complete and consistent with the employer's statements
and attestations contained in the application, the application will be
certified and returned to the employer. If the audit documentation is
incomplete, is inconsistent with the employer's statements and/or
attestations contained in the application, or if the application is
otherwise deficient in some material respect, the application will be
denied and a notification of denial with the reasons therefor will be
issued to the employer. If an application is denied, the employer will
be able to request review of the Certifying Officer's decision by the
Board of Alien Labor Certification Appeals (Board or BALCA).
Additionally, on any application selected for an audit, the regional
Certifying Officer will have the authority to request additional
information before making a final determination or order supervised
recruitment for the employer's job opportunity in any case where
questions arise regarding the adequacy of the employer's test of the
labor market.
The supervised recruitment that may be required by the regional
Certifying Officer, is similar to the current non-RIR regulatory
recruitment scheme under the current basic process which requires
placement of an advertisement in conjunction with a 30-day job order by
the employer. The recruitment, however, will be supervised by ETA
regional offices instead of the SWA's. At the completion of the
supervised recruitment efforts, the employer will be required to
document in a recruitment report that such efforts were unsuccessful,
including the lawful, job-related reasons for not hiring any U.S.
workers who applied for the position. After a review of the employer's
documentation, the regional Certifying Officer will either certify or
deny the application. In all instances in which an application is
denied, the denial notification will set forth the deficiencies upon
which the denial is based. The employer would be able to seek
administrative-judicial review of a denial.
II. Statutory Standard
Before the Immigration and Naturalization Service (INS) may approve
petition requests and the Department of State may issue visas and admit
certain immigrant aliens to work permanently in the United States, the
Secretary of Labor must first certify to the Secretary of State and to
the Attorney General that:
(a) There are not sufficient United States workers who are able,
willing, qualified, and available at the time of the application for a
visa and admission into the United States and at the place where the
alien is to perform the work; and
(b) The employment of the alien will not adversely affect the wages
and working conditions of similarly employed United States workers. (8
U.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
the alien will not adversely affect the wages and working conditions of
similarly employed U.S. workers, DOL so certifies to the INS and to the
Department of State, by issuing a permanent alien labor certification.
If DOL cannot make one or both of the above findings, the
application for permanent alien employment certification is denied. DOL
may be unable to make the two required
[[Page 30468]]
findings for one or more reasons, including:
(a) The employer has not adequately recruited U.S. workers for the
job offered to the alien, or has not followed the proper procedural
steps in 20 CFR part 656.
(b) The employer has not met its burden of proof under section 291
of the Immigration and Nationality Act (INA or Act.) (8 U.S.C. 1361),
that is, the employer has not submitted sufficient evidence of its
attempts to obtain available U.S. workers, and/or the employer has not
submitted sufficient evidence that the wages and working conditions
which the employer is offering will not adversely affect the wages and
working conditions of similarly employed U.S. workers.
III. Current Department of Labor Regulations
The Department of Labor has promulgated regulations, at 20 CFR part
656, governing the labor certification process for the permanent
employment of immigrant aliens in the United States. Part 656 was
promulgated under section 212(a)(14) of the INA (now at section
212(a)(5)(A)). 8 U.S.C. 1182(a)(5)(A).
The regulations at 20 CFR part 656 set forth the factfinding
process designed to develop information sufficient to support the
granting or denial of a permanent labor certification. These
regulations describe the nationwide system of public State Workforce
Agency offices available to assist employers in finding available U.S.
workers and how the factfinding process is utilized by DOL as the basis
of information for the certification determination. See also 20 CFR
parts 651 through 658, and the Wagner-Peyser Act (29 U.S.C. Chapter
4B).
Part 656 also sets forth the responsibilities of employers who
desire to employ immigrant aliens permanently in the United States.
Such employers are required to demonstrate that they have attempted to
recruit U.S. workers through advertising, through the Federal-State
Employment Service/One-Stop System, and by other specified means. The
purpose of the recruitment process is to assure that there is an
adequate test of the availability of U.S. workers to perform the work
and to ensure that aliens are not employed under conditions that would
adversely affect the wages and working conditions of similarly employed
U.S. workers.
In brief, the current process for obtaining a labor certification
requires employers to actively recruit U.S. workers in good faith for a
period of at least 30 days for the job openings for which aliens are
sought. The employer's job requirements must conform to the regulatory
standards (e.g., those normally required for the job), and employers
must offer prevailing wages and working conditions for the occupation
in the area in which the job is located. Further, employers may not
favor aliens or tailor the job requirements to any particular alien's
qualifications.
During the 30-day recruitment period, employers are required to
place a three-day help-wanted advertisement in a newspaper of general
circulation, or a one-day advertisement in a professional, trade, or
business journal, or in an appropriate ethnic publication. Employers
are also required to place a 30-day job order with the local office of
the State Workforce Agency in the state in which the employer seeks to
employ the alien. Alternatively, if employers believe they have already
conducted adequate recruitment efforts seeking qualified U.S. workers
at prevailing wages and working conditions through sources normal to
the occupation and industry, they may request a waiver of the otherwise
mandatory 30-day recruitment efforts. This waiver process is generally
referred to as involving ``Reduction in Recruitment'' applications. If
the employer does not request RIR processing or if the request is
denied, the help-wanted advertisements which are placed in conjunction
with the mandatory thirty-day recruitment effort direct job applicants
to either report in person to the State Workforce Agency office or to
submit resumes to the State Workforce Agency.
Job applicants are either referred directly to the employer or
their resumes are sent to the employer. The employer then has 45 days
to report to the State Workforce Agency the lawful, job-related reasons
for not hiring any U.S. worker referred. If the employer hires a U.S.
worker for the job opening, the process stops at that point, unless the
employer has more than one opening, in which case the application may
continue to be processed. If, however, the employer believes that able,
willing and qualified U.S. workers are not available to take the job,
the application, together with the documentation of the recruitment
results and prevailing wage information, are sent to one of the
Department's regional offices. There, it is reviewed and a
determination is made as to whether or not to issue the labor
certification based upon the employer's compliance with the regulations
governing the program. If the Department of Labor determines that there
are no able, willing, qualified and available U.S. workers, and that
the employment of the alien will not adversely affect the wages and
working conditions of similarly employed U.S. workers, we so certify to
the INS and the DOS, by issuing a permanent labor certification. See 20
CFR part 656; see also section 212(a)(5)(A) of the Immigration and
Nationality Act, as amended (INA).
IV. Discussion of Regulatory Amendments
A. Definitions
We have made several changes to the definitions of the terms used
in part 656. With the exception of the change of the definition of the
term ``employer,'' substantive changes in definitions are discussed
along with substantive changes in the relevant regulatory provisions.
The definition of employer would be amended to reflect the
longstanding policy articulated in Technical Assistance Guide No. 656
Labor Certifications, issued in 1981 that:
Persons who are temporarily in the United States, such as
foreign diplomats, intracompany transferees, students, exchange
visitors, and representatives of foreign information media cannot be
employers for the purpose of obtaining a labor certification for
permanent employment; and
Job opportunities consisting solely of job duties that
will be performed totally outside the United States, its territories or
possessions cannot be the subject of a permanent application for alien
employment certification.
B. Schedule A
1. General
Schedule A is a list of occupations for which DOL has precertified
job opportunities, having made determinations that qualified U.S.
workers are not able, willing, and available, and that alien employment
will not adversely affect the wages and working conditions of similarly
employed U.S. workers. See 20 CFR 656.10 and 656.22. Certification
applications are filed with INS or the Department of State, and those
agencies determine whether an individual application has been
precertified by DOL.
2. Professional Nurses
We have conformed the general description of aliens seeking
Schedule A labor certification as professional nurses at
Sec. 656.5(a)(1) (currently Sec. 656.10(a)(2)) to the procedures at
Sec. 656.15(c)(2)
[[Page 30469]]
(currently Sec. 656.22(c)(2)) to indicate that only a permanent license
can be used to satisfy the alternative requirement to passing the
Commission on Graduates of Foreign Nursing Schools exam that the alien
hold a full and unrestricted license to practice professional nursing
in the State of intended employment. INS has informed us that it has
received applications with temporary licenses or permits filed as
supporting documentation to Schedule A applications. Our intent in
promulgating the current Schedule A procedures for professional nurses
was to put an end to the pre-1981 practice whereby some nurses entered
the United States on temporary licenses and permits, but failed to pass
State examinations for a permanent license. As we have stated with
respect to this issue, ``it is not in the public interest to grant
certification to nurses who will not be able to practice their
profession or who will likely limit or otherwise adversely affect the
wages or job opportunities for U.S. workers in lower-skilled jobs.'' 45
FR 83926, 83927 (December 19, 1980); see also 20 CFR 656.22(c)(2)
(1991).
To be consistent with the description of the other occupational
groups on Schedule A, the definition of professional nurse would be
moved from the section containing the definitions, at Sec. 656.3 in the
current rule, to the section providing a general description of
Schedule A, at Sec. 656.5 in the proposed rule.
3. Aliens of Exceptional Ability In the Performing Arts
The amendments would remove aliens of exceptional ability in the
performing arts from the special handling procedures and include them
on Schedule A as a separate category. The employer or the alien will
have to submit to INS the documentation currently required by 20 CFR
656.21a(a)(1)(iv)(A)(1) through (a)(1)(iv)(A)(6) of the current
regulations. Current recruitment requirements consisting of an
advertisement or a statement from the union, if customarily used as a
recruitment source in the area or industry, will no longer be required.
As a practical matter, under 20 CFR 656.21a, once we determined that an
alien was of exceptional ability in the performing arts, certification
was issued in virtually all such cases. INS can make this determination
as readily as DOL. Such determinations are similar to determinations
Immigration Officers make for aliens of exceptional ability in the
sciences and arts under Group II of Schedule A. In both cases a
determination has to be made whether or not the alien's work during the
past year and intended work in the United States will require
exceptional ability.
Aliens of exceptional ability in the sciences or arts comprise
Group II of Schedule A. We have delegated the determination whether an
alien beneficiary of a labor certification application qualifies for
Schedule A to the Immigration and Naturalization Service (INS).
Schedule A applications are filed with the INS; not with the Department
of Labor. The current and proposed regulations provide that the
Schedule A determination of the INS shall be conclusive and final.
Therefore the employer may not make use of the administrative review
procedures in Part 656. The INS, however, in the process of making its
Schedule A determination may request an advisory opinion as to whether
an alien is qualified for the Schedule A occupation from the Division
of Foreign Labor Certifications.
We have also concluded, based on the small number of applications
submitted on behalf of aliens of exceptional ability in the performing
arts and experience in evaluating the required recruitment reports
submitted in conjunction with such applications, that there are few
performing artists, whether alien beneficiaries or U.S. workers, who
can satisfy the standards to qualify as an alien of exceptional ability
in the performing arts as defined in the regulations. Consequently, the
admission of the few aliens who may qualify as aliens of exceptional
ability in the performing arts will not have an adverse effect on the
wages and working conditions of U.S. performing artists.
C. Schedule B
Schedule B is a list of occupations for which we determined that
U.S. workers are generally able, willing, qualified and available, and
that the wages and working conditions of United States workers
similarly employed will generally be adversely affected by the
employment of aliens in the United States in such occupations. (See 20
CFR 656.11(a) and 23(a) and (b)). The current regulations require that
a waiver must be obtained to receive certification of Schedule B jobs.
A request for a waiver must be filed along with the application to
obtain a certification for an occupation listed on Schedule B.
We propose to eliminate Schedule B, because program experience
indicates that it has not contributed any measurable protection to U.S.
workers. Once an employer files a Schedule B waiver, the application is
processed the same as any other application processed under the non-
RIR, basic process. Whether or not an application for a Schedule B
occupation is certified is dependent on the results of the basic labor
market test detailed in Sec. 656.21 of the current regulations.
D. General Instructions
1. Expansion of Posting Requirement
The posting regulation at Sec. 656.10(d)(ii) in the proposed rule
has been expanded to require in addition to a posting a notice of the
Application for Permanent Labor Certification (ETA Form 9089), that the
employer must publish the posting in any and all in-house media,
whether electronic or printed, in accordance with the normal procedures
generally used in recruiting for other positions in the employer's
organization. Employers must also be prepared to provide documentation
of the posting requirements in the event of an audit.
2. Ability to Pay and Place the Alien on the Payroll
The current regulations and Application for Alien Employment
Certification form (ETA 750) require that the employer document that it
``has enough funds available to pay the wage or salary offered the
alien'', and that ``(t)he employer will be able to place the alien on
the payroll on or before the date of the alien's proposed entrance into
the United States''. We propose to eliminate these provisions from the
regulations and the Application for Alien Employment Certification
form, since our examination of these issues is a duplication of the
examination of the employer's financial standing and the ability to
place the alien on the payroll undertaken by the INS when it processes
the employer's petition. Moreover, these provisions are also
unnecessary because the underlying issues could still be addressed
because we are proposing to retain the provision in the current
regulations that ``(t)he job opportunity has been and is clearly open
to any qualified U.S. worker.'' If the employer is not in a position to
pay the alien and/or place him or her on the payroll, it is not
offering a job opportunity that is clearly open to U.S. workers.
E. Fees
The Appendix to the FY 2001 Budget of the United States states that
``(l)egislation will be proposed that would authorize the Secretary of
Labor to collect fees from employers for the certification of certain
aliens as eligible workers under the Immigration and Nationality Act.''
Although specific legislation has not been proposed to
[[Page 30470]]
implement the fee charging language in the President's budget, the
proposed rule contains a provision outlining how fee charging would be
implemented if it becomes law. If this occurs, the final rule would
require employers to submit a fee with their applications. A charge of
$30.00 would be imposed if a check in payment of the fee is not honored
by the financial institution on which it is drawn. The existence of any
outstanding ``insufficient funds'' checks would be grounds for
returning applications for alien employment certification to the
employer as unacceptable for processing. Receipt of any ``insufficient
funds'' checks while the application is being processed would be
grounds for denying the application. Receipt of any ``insufficient
funds'' checks after an application has been certified would be grounds
for revoking the certification. If an application is returned to the
employer because it was incomplete, the employer would be able to
request a refund of the fee or resubmit the application.
Fees would also be required for Schedule A and Sheepherder
applications which are submitted to INS for adjudication.
If legislation authorizing the Secretary of Labor to collect fees
from employers for the certification of immigrant workers is not passed
by the time a Final Rule is to be published, the proposed fee
provisions will not be included in the Final Rule.
F. Applications for Labor Certification for Schedule A Occupations
1. PWDR Required to File Schedule A Applications With INS
Employers would be required to submit the required processing fee,
a completed PWDR endorsed by the SWA, and a completed Application for
Alien Employment Certification form to the appropriate INS office. The
current Application for Alien Employment Certification form (ETA 750)
requires employers to enter the offered rate of pay and to certify that
the wage offered equals or exceeds the prevailing wage. Since the
application form no longer contains the offered wage, employers would
be required to submit a completed and endorsed PWDR as well as the
application form in Schedule A cases to the appropriate INS office.
2. Aliens of Exceptional Ability in the Performing Arts
As explained above, the proposed rule would remove aliens of
exceptional ability in the performing arts from the special handling
procedures and include them on Schedule A and the documentation
currently required by 20 CFR 656.21a(a)(1)(iv)(A)(1) through
(a)(1)(iv)(A)(6) of the regulations would be required to be submitted
to INS by the employer or the alien beneficiary.
G. Labor Certification Applications for Sheepherders
Procedures for filing applications for Sheepherders in the current
regulations are in the special handling procedures at Sec. 656.21(a).
The new system does not contain a section on special handling
procedures, since we will handle all applications submitted to the
Department in the same way. Sheepherder applications will continue to
be submitted to INS along with the required processing fee. Employers
would have to submit to the appropriate INS officer in addition to the
processing fee:
A completed Application for Alien Employment Certification
form;
A completed PWDR endorsed by the SWA; and
A signed letter or letters from all U.S. employers who
have employed the alien as a sheepherder during the immediately
preceding 36 months, attesting that the alien has been employed in the
United States lawfully and continuously as a sheepherder, for at least
33 of the immediately preceding 36 months.
Employers that cannot not meet the requirements to file their
applications for sheepherders with INS will be able to file their
applications under the revised basic process described below.
H. Basic Process
1. Filing Applications
Employers would be required to file a completed Application for
Alien Employment Certification form and a PWDR endorsed by the SWA with
a designated ETA application processing center. Supporting
documentation that may be requested by the Certifying Officer in an
audit letter would not be filed with the application, but the employer
would be expected to be able to provide required supporting
documentation if its application were selected for audit.
The new system would limit the role of the SWA in the permanent
labor certification process to providing PWD's. Prevailing wage
determinations are currently made by SWA's after the application has
been filed as part of the normal process of reviewing an application
and informing the employer of deficiencies therein. In the new process,
the employer would still be required to obtain a PWD from the SWA,
although the timing would change from a post-filing action to a pre-
filing action.
Under the proposed regulations, before filing a permanent
application with an ETA application processing center, the employer
would submit a PWDR to the SWA. (The ``machine readable'' PWDR would
also be used to submit prevailing wage requests for the H-1B and H-2B
programs.) The SWA would issue a PWD on the PWDR form and return it to
the employer. The fully executed PWDR form would become part of the new
application form filed at an ETA application processing center.
2. Processing
Computers would do an initial analysis of the information provided
on the ``machine readable'' application form. Applications that could
not be accepted for processing because certain information that was
requested by the application form was not provided will be returned to
the employer. Applications accepted for processing would be screened
and would be certified, denied or selected for audit.
Information on the form may trigger a denial of the application or
a request for an audit by Federal regional office staff. The
application may also be selected for audit on a random basis as a
quality control measure. If an application is not denied or selected
for audit we anticipate that the application will be certified and
returned to the employer within 21 days.
If the application is selected for audit, we will send the employer
a letter with instructions to furnish required documentation supporting
the information provided on the application form within 21 calendar
days of the date of the request. If the requested information is not
received in a timely fashion, the application will be denied.
3. Filing Date
Applications accepted for processing will be date stamped.
Applications which are not accepted for processing and returned to
employer will not be date stamped to minimize the administrative
burden, and to discourage employers from filing an application merely
to obtain a filing date, which under the regulations of the INS and
Department of State becomes the priority date for processing petitions
and visa applications, respectively.
Employers will be able to withdraw applications for alien
employment certification filed under the current regulations and file
an application for the identical job opportunity involved in the
withdrawn application under the proposed rule without loss of the
filing date.
[[Page 30471]]
4. Required Prefiling Recruitment
a. Professional occupations.
Exclusively for the purpose of the permanent labor certification
program, the proposed rule defines a professional occupation as an
occupation for which the attainment of a bachelor's or higher degree is
a usual requirement for the occupation. Employers would be required to
adequately test the labor market at prevailing wages and working
conditions during the 6-month period preceding the filing of the
application. The recruitment steps consist of prescribed mandatory and
alternative steps and are designed to reflect what we believe, based on
our program experience, are the recruitment methods that are most
appropriate to the occupation. The mandatory steps for professional
occupations consist of:
Placement of a job order with the SWA serving the area of
intended employment;
Placement of two advertisements in the Sunday edition of
the newspaper of general circulation most appropriate to the occupation
and the workers likely to apply for the job opportunity in the area of
intended employment; and
Placement of an advertisement in an appropriate journal in
lieu of one Sunday advertisement if the position involves experience
and an advanced degree.
Under the current system, the employer may advertise, when a
newspaper of general circulation is designated as the appropriate
advertising medium, in any newspaper of general circulation. However,
our experience has shown that some employers routinely place newspaper
advertisements in those newspapers with the lowest circulation and that
these publications are often the least likely to be read by qualified
U.S. workers. Therefore, in order for the employer's job opening to
receive appropriate exposure, the proposed regulation requires that the
mandatory advertisements appear in the newspaper of general circulation
most appropriate to the occupation and the workers most likely to apply
for the job opportunity in the area of intended employment. For
example, in a relatively large metropolitan area such as Philadelphia,
Pennsylvania or Washington, DC, it would not be appropriate to place an
advertisement for a computer professional in a suburban newspaper of
general circulation since workers interested in professional jobs
consult the metropolitan newspapers in the area of intended employment
with the largest circulation rather than the suburban newspapers of
general circulation. On the other hand, it would be appropriate to
advertise in a suburban newspaper of general circulation for
nonprofessional occupations, such as jewelers, houseworkers or drivers.
If the position involves experience and an advanced degree, the
proposed regulation requires that the employer place one advertisement
in an appropriate professional journal in lieu of one Sunday
advertisement. To assure that employers make a current and complete
test of the labor market, the mandatory recruitment steps must be
conducted at least 30 days, but no more than 180 days, before the
application is filed. In addition, the mandatory advertisements must be
placed at least 28 days apart.
The employer, as indicated above, would also be required to select
three additional pre-filing recruitment steps from among commonly used
professional recruitment channels, such as job fairs, job search web
sites and private employment agencies. Unlike the mandatory steps, one
of the additional recruitment steps may consist solely of activity that
takes place within 30 days of the filing of the application.
We are publishing in Appendix A to the preamble a list of
occupations for which a bachelor's or higher degree is a usual
requirement. The basic list was developed by the Bureau of Labor
Statistics (BLS) and was based on its analyses of occupations' usual
education and training requirements conducted to produce the
Occupational Outlook Handbook. The Employment and Training
Administration developed a crosswalk to the O*NET, Standard
Occupational Classification (SOC) codes. The occupational titles, along
with the relevant O*Net-SOC codes and codes which indicate whether the
usual degree requirement for the occupation is for a professional
degree, doctoral degree, master's degree, work experience plus a
bachelor's or higher degree, or a bachelor's degree, are presented in
the list we are publishing in Appendix A. We do not plan to codify
Appendix A. Additional information about the occupations, including
their definitions, can be obtained from O*Net online at http://
online.onetcenter.org. Commenters are invited to submit comments on the
appropriateness of the occupations included on the list published in
Appendix A.
b. Nonprofessional Occupations
The proposed rule defines a non-professional occupation as any
occupation for which the attainment of a bachelor's or higher degree is
not a usual requirement for the occupation. Recruitment for occupations
that normally do not require a baccalaureate or higher degree, i.e.,
non-professional occupations, consists of three mandatory steps: two
newspaper advertisements and placement of a job order with the SWA
serving the area of intended employment. All three recruitment steps
must occur at least 30 days but no more than 180 days, before filing
the application. Like recruitment for professional occupations, the
advertisements must be placed at least 28 days apart, and must run in
the Sunday edition of the newspaper of general circulation most
appropriate to the occupation and the workers likely to apply for the
job opportunity.
The advertising requirements for both professional and
nonprofessional occupations are more extensive than under the current
regulations. The difference in advertising requirements between
professional and nonprofessional occupations is based on the
Department's experience as to how employers advertise for these two
broad categories of workers. The Department is interested in receiving
comments on the more extensive advertising requirements, and the
different advertising requirements for professional and nonprofessional
occupations.
5. Newspaper Advertising Requirements
The proposed requirements for the newspaper advertisements are
modeled after current regulatory requirements at 20 CFR 656.21(g),
except the advertisement must: (1) identify the employer; (2) direct
potential job seekers to the employer and not the SWA; and (3) provide
a description of the job and its geographical location that is
sufficiently detailed to fully inform U.S. workers of the particular
job opportunity. Additionally, the wage must equal or exceed the
prevailing wage entered on the PWDR by the SWA. Any job requirements
listed in the advertisement may not exceed those listed on the PWDR.
6. Recruitment Report
The employer will be required to maintain documentation of the
recruitment efforts it has undertaken and the results thereof,
including the lawful job-related reasons for rejecting U.S. workers who
applied for the job. Recruitment reports may be required in the cases
selected for audit and are required in every case in which employers
conduct supervised recruitment. Under the current regulations,
employers have always had
[[Page 30472]]
to report on the lawful job-related reasons why each U.S. worker
applying for the job or referred to the employer was not hired. See 20
CFR 656.21(b)(6) in the current regulations. The proposed regulation
provides that the employer must prepare a summary report describing the
recruitment steps taken and the results, including the number of U.S.
applicants, the number of job openings in the job opportunity, the
number of applicants hired and, if applicable, the number of U.S.
workers rejected summarized by the lawful job reasons for such
rejections. The Certifying Officer, however, after reviewing the
employer's recruitment report may request the resumes or applications
of the U.S. workers who were rejected sorted by the reasons for
rejection provided by the employer in its recruitment report.
The proposed rule governing the content of recruitment reports,
required for recruitment conducted prior to filing the application by
the employer or for supervised recruitment that may be required by the
Certifying Officer, would also clarify our position regarding
``qualified'' U.S. workers. We have added the requirements currently
found at Sec. 656.24(b)(2)(ii) to the requirements for the recruitment
reports required to be submitted by employers on the results of their
prefiling and supervised recruitment of U.S. workers. The recruitment
requirements thus provide that a U.S. worker may be qualified for the
employer's job opportunity even if he/she does not meet every one of
the employer's job requirements. The U.S. worker who, by education,
training, experience, or a combination thereof, qualifies by being able
to perform, in the normally accepted manner, the duties involved in the
occupation may not be rejected for failing to meet a specific job
requirement. In addition, the U.S. worker is considered qualified, if
he/she can acquire during a reasonable period of on-the-job-training,
the skills necessary to perform as customarily performed by other U.S.
workers similarly employed, the duties involved in the occupation.
7. Job Requirements
a. Business Necessity Standard and Job Duties
The requirement that the employer's job requirements must be those
normally required for jobs in the United States would be retained in
the new system. Employers, however, would not be able to justify job
requirements that exceed those that are normal by use of business
necessity. The business necessity standard, curre
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