… … … … … … … …

Labor Department”s Proposed

Regulations for Labor Certifications

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[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]

Department of Labor

Employment and Training Administration

20 CFR Parts 655 and 656

Labor Certification for the Permanent Employment of Aliens in the
United States; Implementation of New System; Proposed Rule

DEPARTMENT OF LABOR

Employment and Training Administration

20 CFR Parts 655 and 656

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.

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 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) (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.

2. 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 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.

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 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, currently at 20 CFR
656.21(b), often works to the disadvantage of U.S. workers. This
regulation has been difficult to administer and has generated a greater
amount of litigation than any other regulatory provision in the current
regulations. Since the position for which certification is sought is
usually held by an alien worker who is the beneficiary of the
application, job requirements tend to be manipulated to favor the
selection of the alien. The existing business necessity standard
requires the CO to evaluate the unique standards of an employer”s
business. In highly technical areas this is an extremely difficult
undertaking and may be subject to employer manipulation since we are in
no position to second guess the employer in such circumstances.

We have concluded that any business necessity standard that may be
adopted would present similar problems. Therefore, the proposed rule
would not retain a business necessity standard as a justification for
employer”s job requirements that exceed requirements that are normal to
jobs in the United States. However, as discussed below, the case law
relating to how the business necessity standard relates to a language
requirement is being adopted. Further, any requirements other than
those relating to the number of months or years of experience in the
occupation or the number of months or years of education or training in
the occupation cannot be specified as a job requirement, unless
justified in the limited circumstances discussed below.

Accordingly, the proposed rule provides that the job opportunity”s
requirements cannot exceed the Specific Vocational Preparation level
assigned to the occupation as shown in the O*Net Job Zones, except in
certain limited circumstances, as explained below.

b. Other Job Requirements

Job requirements other than those relating to the number of months
or years of experience in the occupation or the number of months or
years of training cannot be used unless justified in certain limited
circumstances, discussed below.

(1) Previous Employment of U.S. Workers

Other requirements can be justified if the employer employed a U.S.
worker to perform the job opportunity with the duties and requirements
specified in the application within 2 years of filing the application.
ETA”s operating experience indicates that the more recently a job
existed and was filled by a U.S. worker before the time an application
is filed, the more likely it is to involve a job that is clearly open
to U.S. workers. In the event of an audit, the proposed rule provides
that previous employment of a U.S. worker in an occupation with
requirements other than those relating to experience, education and/or
training can be documented by furnishing the name of the former
employee, and an appropriate combination of the following: job
description, resume, payroll records, letter from previous employee and
previous recruitment documentation.

(2) Other Requirements Are Normal to the Occupation

Requirements other than those relating to amount of experience and
education could be justified if the requirements were normal to the
occupation in order for a person to perform the basic job duties and
were routinely required by other employers in the industry. The
proposed rule provides that employers can document such requirements by
providing copies of state and/or local laws, regulations, ordinances;
articles; help-wanted advertisements; or employer surveys. Acceptable
examples, depending on the occupation, include but are not limited to,
professional trade or business licenses, licensing standards, specified
typing speed, and the ability to lift a minimum number of pounds.

(3) Foreign Language Requirement

Preventing employers from artificially tailoring job opportunities
to fit the unique skills of the incumbent alien has always been a major
issue is the labor certification process. Since 1977, we have addressed
this through the use of the “business necessity”" test. For reasons
already discussed, we are not utilizing business necessity in the new
system. However, with respect to language requirements, which are often
used by employers seeking to artificially restrict the job to the
incumbent alien, the use of the business necessity standard produced a
well-understood and, generally, well-accepted body of law about when
and how language requirements can be utilized. The proposed rule
incorporates that legal standard.

Consistent with the majority of BALCA decisions, the proposed rule
would require that a foreign language requirement cannot be included
merely for the convenience of the employer or because it is a mere
preference of the employer, co-workers or customers. Although the
proposed rule would eliminate any business necessity standard as a
means of justifying a foreign language requirement, the rule would incorporate the existing
standards and criteria developed under BALCA case law. Therefore, a
foreign language can be based on the nature of the occupation; e.g.,
translator, or, for example, the existence of the need to communicate
with a large majority of the employer”s customers or regular
contractors who cannot communicate effectively in English. This can be
documented by the employer furnishing the number and proportion of its
clients contractors who cannot communicate in English, a detailed
explanation of why the duties of the position for which certification
is sought require frequent contact with and communication with
customers or contractors who cannot communicate in English, and why it
is reasonable to believe that the foreign language customers and
contractors cannot communicate in English.

(4) Combination Occupations

The revised regulation makes two changes to the provision about
combination of duties in the current regulation. First, the proposed
regulation uses the term “combination of occupations”" instead of
“combination of duties”" as most jobs require the incumbent to perform
a combination of duties. Second, the ability to document the need for a
combination of occupations would be limited to two instead of three
alternative forms of documentation that can be furnished by the
employer to support a combination of occupations under the current
regulations. For the reasons explained above in the discussion on the
elimination of a business necessity standard, business necessity would
no longer be a basis for justifying a job opportunity involving a
combination of occupations. Further, the alternative provided in the
current regulations for justifying a combination of duties which allows
the employer to document that it has normally employed persons for that
combination of duties would be replaced with the standard, discussed
above, for justifying requirements other than experience and education
that are based on the previous employment of a U.S. worker.
Accordingly, the revised regulation limits the alternative forms of
documentation the employer can furnish to support a combination of
occupations to documentation that it employed a U.S. worker for the
same combination of occupations involved in the application within 2
years of filing the application and/or that workers customarily perform
the combination of occupations in the area of intended employment.

Consistent with our longstanding policy, combination jobs would be
classified and prevailing wages determined in the following order: (1)
The highest paying occupation; (2) the highest skilled occupation; or
(3) the occupation that requires the largest percentage of the
applicant”s time. The highest paying occupation is considered first in
classifying the job opportunity because the prevailing wage for the
highest paying occupation has to be offered by the employer in order to
conduct a valid test of the labor market for the highest paying
occupation involved in the employer”s job opportunity. If two or more
occupations have the same high prevailing wage, the job opportunity
would be classified according to the one that is the most highly
skilled. If two or more occupations require the same high level of
skill, the combination occupation would be classified in accordance
with the one that would require the largest percentage of the
incumbent”s time.

8. Actual Minimum Requirements

The proposed rule precludes employers including as a requirement
for the job opportunity any experience the alien gained working for the
employer in any capacity, including working as a contract employee.
Since 1977, we have prohibited using experience gained with the
employer to be used as qualifying experience except in cases where the
alien gained the experience in dissimilar jobs or in instances where it
is no longer feasible for the employer to train a U.S. worker. After
over 2 decades of administering this regulation, we have concluded
there is no material difference in the need to protect U.S. workers if
the alien gained the experience in a similar job or a dissimilar job,
or if the employer maintains that it is no longer feasible to train
another worker for the job involved in the application.

The need to protect U.S. workers stems in large measure from the
same reason we are proposing to eliminate business necessity as a
justification for exceeding job requirements that are normal to the job
in the United States. In situations where the alien encumbers the job
opportunity involved in the employer”s application, job requirements
tend to be manipulated in favor of the alien incumbent to the
disadvantage of U.S. workers.

The question of what employing entity is the employer has also
presented considerable confusion. To clarify this issue and to maximize
protection to U.S. workers we have concluded, consistent with the BALCA
decision In the Matter of Haden, Inc. (88-INA-245, August 30, 1988),
that the definition of employer should be broadly drawn. Accordingly,
we propose to define the term “employer”" to include predecessor
organizations, successors in interest, a parent, branch, subsidiary, or
affiliate, whether located in the United States or another country.
Although ETA has followed Haden in administering the current
regulations, the Department seeks comments on the proposed definition
of employer for administering the provision pertaining to actual
minimum requirement at Sec. 656.17(h).

9. Alternative Experience Requirements

We are proposing to eliminate the use of alternative experience
requirements as a means of qualifying for the employer”s job
opportunity for much the same reasons we are proposing to eliminate
business necessity and to preclude the employer from including as a
requirement for the job opportunity any experience the alien gained
working for the employer in any capacity.

As a practical matter, in virtually all instances involving
alternative experience requirements the alien beneficiary has been
employed, usually by the employer applicant, in a job requiring less
than 2 years of training or experience. The Act only allocates 10,000
visas a year to workers immigrating to work in the employment-based
preference provided in the Act for such jobs (see 8 U.S.C.
1153(b)(3)(A)(iii)). The visa category for these unskilled jobs is
oversubscribed and there is approximately a 41/2 year wait for aliens
who are waiting to immigrate to work in jobs requiring less than 2
years of training and experience. The other employment-based
preferences requiring labor certification are generally not
oversubscribed. The primary objective of the employer in specifying
alternative experience requirements is to obtain certification for a
job opportunity for which visa numbers are currently available. In
these cases, as in the situations where business necessity
justifications have been proffered, or in instances where the employer
maintains the alien gained the experience in a dissimilar jobs or
maintains that it is no longer feasible to train another worker for the
job involved in the application, there is a need to protect U.S.
workers as the job requirements tend to be manipulated to favor the
alien beneficiary.

10. Conditions of Employment

The current regulations do not explicitly address conditions of
employment, but we consider conditions of employment, such as a
requirement to live in the employer”s household or a requirement to
work a split shift, an important element of working conditions.
Generally, unusual working conditions can be justified if the employer
can document that they are normal to the occupation in the area and
industry. The one exception to this rule is for live-in household
domestic service workers. Because of the past history of program abuse
involving the filing of large numbers of accommodation cases motivated
primarily by the desire to obtain permanent resident alien status for
the alien beneficiary and not by legitimate employment needs, the
proposed rule would incorporate the standards and criteria that have
been developed by BALCA case law to determine when a live-in
requirement for a household domestic service workers is acceptable.

Therefore, live-in requirements are acceptable for household
domestic service workers only if the employer can demonstrate that the
requirement is essential to perform in a reasonable manner the job
duties as described by the employer, and there are not cost-effective
alternatives to a live-in household requirement. Mere employer
assertions do not constitute acceptable documentation. For example, a
live-in requirement could be supported by documenting two working
parents and young children in the household, and/or the existence of
erratic work schedules requiring frequent travel and a need to
entertain business associates and clients on short notice. Depending
upon the situation, acceptable documentation could consist of travel
vouchers, written estimates of costs of alternatives such as baby
sitters, and/or a detailed listing of the frequency and length of
absences of the employer from the home.

The proposed rule would also retain the filing and documentation
requirements at 20 CFR 656.21(a) for live-in household domestic service
workers that have been in the permanent labor certification regulations
since 1977 to minimize program abuse and abuse of the alien, such as
the requirement that a signed copy of the contract must be provided to
the alien and documentation of the alien having 1 year”s prior
experience in the occupation and are described below in greater detail.

11. Layoffs

The current regulations do not specifically require employers to
consider potentially qualified U.S. workers who may have been laid off
within a reasonably contemporaneous period of time of the filing of the
labor certification application by the employer. However, it has always
been our position that Certifying Officers have the authority to
consider the availability of these workers under Sec. 656.24(b)(2)(i)
and (iii) of the current regula