[Federal Register: December 27, 2004 (Volume 69, Number 247)]
[Rules and Regulations]
[Page 77325-77421]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr27de04-5]
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Part II
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; Final Rule
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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
AGENCY: Employment and Training Administration, Labor.
ACTION: Final rule.
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SUMMARY: The Department of Labor (DOL) is amending 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
new system requires employers to conduct recruitment before filing
their applications. State Workforce Agencies (SWAs) will provide
prevailing wage determinations to employers, but will no longer receive
or process applications as they do under the current system. Employers
will be required to place a job order with the SWA, but the job order
will be processed the same as any other job order. Employers will have
the option of filing applications electronically, using web-based forms
and instructions, or by mail.
DATES: Effective Date: This final rule is effective on March 28, 2005,
and applies to labor certification applications for the permanent
employment of aliens filed on or after that date.
FOR FURTHER INFORMATION CONTACT: PERM Help Desk, Division of Foreign
Labor Certification, Employment and Training Administration, 200
Constitution Avenue, NW., Room C-4312, Washington, DC 20210. Telephone
(202) 693-3010 (this is not a toll free number). Questions may be sent
via e-mail to the following address `` PERM.DFLC@dol.gov. We encourage
questions to be submitted by e-mail, because the Division of Foreign
Labor Certification intends to post responses to frequently asked
questions on its Web site (http://www.ows.doleta.gov/foreign/) and e-
mail submission of questions will facilitate thorough consideration and
response to questions.
SUPPLEMENTARY INFORMATION
I. Introduction
On May 6, 2002, the Department published in the Federal Register a
Notice of Proposed Rulemaking (NPRM) to amend its regulations for the
certification of permanent employment of immigrant labor in the United
States. The NPRM also proposed amending the regulations governing
employer wage obligations under the H-1B program. 67 FR 30466 (May 6,
2002). Comments were invited through July 5, 2002.
II. Statutory Standard
Before the Department of Homeland Security (DHS) may approve
petition requests and the Department of State (DOS) may issue visas and
admit certain immigrant aliens to work permanently in the United
States, the Secretary of Labor must certify to the Secretary of State
and to the Secretary of Homeland Security:
(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 of Labor, through the Employment and Training
Administration (ETA), determines there are no able, willing, qualified,
and available U.S. workers and employment of the alien will not
adversely affect the wages and working conditions of similarly employed
U.S. workers, DOL so certifies to the Department of Homeland Security
and to the Department of State by issuing a permanent alien labor
certification.
If DOL can not make both of the above findings, the application for
permanent alien employment certification is denied.
III. Current Department of Labor Regulations
DOL 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 Immigration and Nationality Act (INA) (now at Section
212(a)(5)(A)). 8 U.S.C. 1182(a)(5)(A).
Part 656 sets forth the responsibilities of employers who desire to
employ immigrant aliens permanently in the United States. Part 656 was
recently amended through an Interim Final Rule effective on August 20,
2004, which added measures to address a backlog in permanent labor
certification applications waiting processing. 69 FR 43716 (July 21,
2004). When this final rule refers to the ``current regulation,'' it
refers to the regulation in 20 CFR part 656 as published in April 2004
and amended by 69 FR 43716.
The current process for obtaining a labor certification requires
employers to file a permanent labor certification application with the
SWA serving the area of intended employment and, after filing, 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.
Job applicants are either referred directly to the employer or
their resumes are sent to the employer. The employer has 45 days to
report to either the SWA or an ETA backlog processing center or
regional office the lawful job-related reasons for not hiring any
referred qualified U.S. worker. 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 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, is sent to either an ETA backlog
processing center or ETA regional office. There, it is reviewed and a
determination made as to whether to issue the labor certification based
upon the employer's compliance with applicable labor laws and program
regulations. If we determine there are no able, willing, qualified, and
available U.S. workers, and 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 DHS and the DOS by issuing a
permanent labor certification. See 20 CFR part 656 (April 2004) as
amended by 69 FR 43716 (July 21, 2004); see also section 212(a)(5)(A)
of the INA, as amended.
IV. Overview of the Regulation
This final rule deletes the current language of 20 CFR part 656 and
replaces the part in its entirety with new regulatory text, effective
on March 28, 2005. This new regulation will apply to all applications
filed on or after the effective date of this final rule. Applications
filed before this rule's effective date will continue to be processed
and governed by the current regulation, except to the extent an
employer seeks to withdraw an existing application and refile it in
accordance with the terms of this final rule.
On December 8, 2004, the President signed into law the Consolidated
Appropriations Act, 2005. This
[[Page 77327]]
legislation amends Section 212(p) of the INA, 8 U.S.C. 1182(p), to
provide that:
(3) The prevailing wage required to be paid pursuant to
(a)(5)(A), (n)(1)(A)(i)(II) and (t)(1)(A)(i)(II) shall be 100
percent of the wage determined pursuant to those sections.
(4) Where the Secretary of Labor uses, or makes available to
employers, a governmental survey to determine prevailing wage, such
survey shall provide at least 4 levels of wages commensurate with
experience, education, and the level of supervision. Where an
existing government survey has only 2 levels, 2 intermediate levels
may be created by dividing by 3 the difference between the two
levels offered, adding the quotient thus obtained to the first
level, and subtracting that quotient from the second level.
The 100 percent requirement is consistent with this final rule. The
Department will be preparing guidance concerning the implementation of
the 4 levels of wages.
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, State Workforce
Agencies and the Federal government. The new system is designed to
streamline processing and ensure the most expeditious processing of
cases, using the resources available.
The new system requires employers to conduct recruitment before
filing their applications. Employers are required to place a job order
and two Sunday newspaper advertisements. If the application is for a
professional occupation, the employer must conduct three additional
steps that the employer chooses from a list of alternative recruitment
steps published in the regulation. The employer will not be required to
submit any documentation with its application, but will be expected to
maintain the supporting documentation specified in the regulations. The
employer will be required to provide the supporting documentation in
the event its application is selected for audit and as otherwise
requested by a Certifying Officer.
This final rule also provides employers with the option to submit
their forms either electronically or by mail directly to an ETA
application processing center. A number of commenters indicated they
wanted the option of filing electronically. Since January 14, 2002,
employers have been allowed to submit Labor Condition Applications
(LCAs) electronically under the nonimmigrant H-1B program, which has
been very successful. Similarly, we expect electronic filing of
applications for permanent alien employment certification to be
successful and to be used by the overwhelming majority of employers
filing applications. Employers will receive more prompt adjudication of
their applications than would have been the case under a system that
permitted only submission of applications by facsimile transmission or
by mail. The new form--Application for Permanent Employment
Certification (ETA Form 9089)--has been designed to be completed in a
web-based environment and submitted electronically or to be completed
by hand and submitted by mail.
The preamble to the proposed rule indicated that, initially, if a
processing fee was not implemented, employers would be allowed to
submit applications by facsimile transmission or by mail. DOL, however,
has decided employers will not be permitted to submit applications by
facsimile. Our experience with facsimile transmission under the H-1B
program has been considerably less than optimal. It should also be
noted employers do not have such an option under the current
regulations for the permanent labor certification program.
To accommodate electronic filing, a complete application will
consist of one form. The new form, ETA Form 9089, will contain
additional ``blocks'' to be marked by the employer to acknowledge that
the submission is being made electronically and that information
contained in the application is true and correct. We have developed a
customer-friendly Web site (http://www.workforcesecurity.doleta.gov/foreign/
) that can be accessed by employers to electronically fill out
and submit the form. The Web site includes detailed instructions,
prompts, and checks to help employers fill out the form. The Web site
also provides an option to permit employers that frequently file
permanent applications to set up secure files within the ETA electronic
filing system containing information common to any permanent
application they file. Under this option, each time an employer files
an ETA Form 9089, the information common to all of its applications,
e.g., employer name, address, etc., will be entered automatically, and
the employer will have to enter only the data specific to the
application at hand.
Electronic submission and certification requires ETA Form 9089 be
printed out and signed by the employer immediately after DOL provides
the certification. A copy of the signed form must be maintained in the
employer's files, and the original signed form must be submitted to
support the Immigrant Petition for Alien Worker (DHS Form I-140).
Because we do not yet have the technology to satisfy the statutes
that deal with electronic signatures on Government applications--the
Government Paperwork Elimination Act (44 U.S.C. 3504 n.) and/or the
Electronic Records and Signatures in Global and National Commerce Act
(E-SIGN) (15 U.S.C. 7001--7006)--we are not implementing either of
these statutes in this final rule. In the event such technology becomes
available in the future, we will modify the electronic process for
filing and certifying applications for permanent alien employment to
comply with these statutes, and will provide appropriate notice(s) and
instructions to employers. We view it as inadvisable to delay the
electronic filing and certifications system while we develop this
additional technology. When the statutes that deal with electronic
signatures are implemented, all electronic filings will require such
signatures. We are, however, implementing use of a PIN/Password system
in the interim.
As indicated above, a complete application will consist of a single
form: ETA Form 9089. The majority of the items on the application form
consist of questions that require the employer to check Yes, No, or NA
(not applicable) as a response. These questions and other information
required by the application form elicit information similar to that
required by the current labor certification process. For example, the
wage offered on the application form must be equal to or greater than
the prevailing wage determination provided by the SWA. The application
form also requires the employer to describe the job and specific skills
or other requirements.
The employer will not be required to provide any supporting
documentation with its application but must maintain and, when
requested by the Certifying Officer, furnish documentation to support
its answers, attestations and other information provided on the form.
The standards used in adjudicating applications under the new system
will be substantially the same as those used in arriving at a
determination in the current system. The determination will still be
based on: whether the employer has met the procedural requirements of
the regulations; whether there are insufficient U.S. 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.
[[Page 77328]]
Many commenters were concerned about the potential for fraud,
misrepresentation, and non-meritorious applications in an attestation-
based system. Some, but not all, of the measures we have taken to
minimize these problems, include: a review of applications, upon
receipt, to verify the existence of the employer and to verify the
employer has employees on its payroll, and the use of auditing
techniques that can be adjusted as necessary to maintain program
integrity. The concerns about fraud and the measures we will implement
to address such concerns are discussed below in greater detail.
SWAs will no longer be the intake point for receipt of applications
for permanent alien employment certification and will not be required
to be the source of recruitment and referral of U.S. workers as they
are in the current system. The required role of SWAs in the redesigned
permanent labor certification process will be limited to providing
prevailing wage determinations (PWD). Employers will be required to
obtain a PWD from the SWA before filing their applications with DOL.
The SWAs will, 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 pre-filing recruitment, providing employers with
the option to complete applications in a web-based environment,
automated processing of applications including those submitted by mail,
and elimination of the SWA's required role in the recruitment process
will yield a large reduction in the average time needed to process
labor certification applications. The redesigned system should also
eliminate the need to institute special resource-intensive efforts to
reduce backlogs, which have been a recurring problem.
After ETA's initial review of an application has determined that it
is acceptable for processing, a computer system will review the
application based upon various selection criteria that will allow
problematic applications to be identified for audit. Additionally, as a
quality control measure, some applications will be randomly selected
for audit without regard to the results of the computer analysis. DOL
has incorporated identifiers into the processing system, which are used
to select cases for audit based upon program requirements. In some
instances, DOL will be confirming specific information with employers.
If an application has not been selected for audit, and satisfies
all other reviews, the application will be certified and returned to
the employer. The employer must immediately sign the application and
then submit the certified application to DHS in support of an
employment-based I-140 petition. We anticipate an electronically filed
application not selected for audit will have a computer-generated
decision within 45 to 60 days of the date the application was initially
filed.
If an application is selected for 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, it will be reviewed by ETA personnel. If the
employer does not submit a timely response to the audit letter, the
application will be denied. If the audit documentation is complete and
consistent with the employer's statements and attestations contained in
the application, and not deficient in any material respect, the
application will be certified the employer will be notified. 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 therefore will be issued to the employer. However, on any
application, the CO will have the authority to request additional
information before making a final determination.
The CO may also order supervised recruitment for the employer's job
opportunity, such as where questions arise regarding the adequacy of
the employer's test of the labor market. The supervised recruitment
that may be required is similar to the current regulations for
recruitment under basic processing, which requires placement of
advertisements in conjunction with a 30-day job order by the employer.
The recruitment, however, will be supervised by ETA COs instead of the
SWAs. At the completion of the supervised recruitment effort, the
employer will be required to document in a recruitment report the
outcome of such effort, whether successful or not, and if unsuccessful,
the lawful job-related reasons for not hiring any U.S. workers who
applied for the position. Upon review of the employer's documentation,
the CO will either certify or deny the application.
In all instances in which an application is denied, the
notification will set forth the deficiencies upon which the denial is
based. The employer will be able to seek administrative-judicial review
of a denial by the Board of Alien Labor Certification Appeals (BALCA).
Excepted Occupations in Team Sports
The preamble to the NPRM made no mention of the special procedures
used in processing applications on behalf of certain aliens to be
employed in professional team sports. Those special procedures have
been in place for over 25 years and it was not our intent to modify
those procedures as a result of this rulemaking. Employers filing
applications on behalf of aliens to be employed in professional team
sports will continue to use the existing special procedures and will
continue to file their applications using the Application for Alien
Employment Certification (ETA 750). ETA intends to issue a directive
detailing the procedures to be followed in filing applications on
behalf of aliens to be employed in professional team sports.
V. Discussion of Comments on Proposed Rule
We received a total of 195 comments from attorneys, educational
institutions, individuals, businesses and SWAs. Most of the commenters
were critical of one or more of the changes, and suggested alternatives
and improvements. Some commenters suggested abandonment of the proposed
system entirely.
A. Fraud, Program Abuse, and Non-Meritorious Applications
Many commenters expressed concerns about the potential for fraud,
program abuse, and the filing of non-meritorious applications in an
attestation-based system. Some commenters suggested a two-tier system
for processing applications to address an expected increase in
fraudulent or non-meritorious applications.
1. Concerns About Fraud, Program Abuse, and Non-Meritorious
Applications
Numerous commenters believed the proposed system would be more
susceptible to fraud and non-meritorious applications than the current
system. The Federation for American Immigration Reform (FAIR) was of
the opinion the review process in the proposed rule would not meet the
legal standard in INA section 212(a)(5)(A). A couple of commenters
emphasized the need to provide for meaningful enforcement.
[[Page 77329]]
A SWA noted its application cancellation and withdrawal rate of 15
percent, and stated the incidence of fraud and abuse of the current
system suggests a need for tighter controls, rather than a process that
relies on employer self-attestations. Another SWA expressed concern
that many instances of fraud would not be apparent to the CO, who would
be relatively unfamiliar with the situation in individual states.
A DOL employee expressed concern about the increasing number of
permanent applications not supported by an actual job location or
position, or for which there is no bona fide employer signature. The
commenter also believed the pre-filing recruitment would increase
opportunities for employers to avoid hiring qualified U.S. workers.
Several commenters expressed concern about the lack of hands-on
review. These commenters included the American Council of International
Personnel (ACIP), the American Federation of Labor and Congress of
Industrial Organizations (AFL-CIO), FAIR, and various SWAs. ACIP
believed the proposed rule's audit and enforcement procedures would not
act as effective deterrents to fraud and misrepresentation. The AFL-CIO
considered a thorough manual review of labor certification applications
to be, at times, the sole protection of American workers. One commenter
suggested DOL impose penalties similar to those used in the H-1B
program, such as civil money penalties and debarment from the labor
certification program, for employers who file fraudulent applications.
We believe commenters exaggerate the current system's ability to
identify fraud and underestimate the new system's ability to deter it.
We agree with the commenters that fraud is a serious problem. As a
result of our program experience, we envision a review of applications,
upon receipt, to check among other things, the bona fides of the
employer. Additionally, we intend to aggressively pursue means by which
to identify those applications that may be fraudulently filed.
Our initial review will verify whether the employer-applicant is a
bona fide business entity and has employees on its payroll. For
example, the employer's tax identification number could be crosschecked
with available off-the-shelf software used by credit-reporting
agencies; we may also use off-the-shelf commercial products such as the
American Business Directory or similar compendiums of employers in the
U.S. We also intend to conduct checks to ensure the employer is aware
that the application was filed on its behalf. Finally, we intend to
explore means of coordination with the SWAs, which retain
responsibility for making prevailing wage determinations, in order to
avail ourselves of state expertise regarding the local employer
community and the local labor market.
Regarding the imposition of civil money penalties and other
penalties, we are not imposing such penalties in this final rule. We
have concluded that before making such fundamental changes in the
program we should publish proposed penalties for notice and comment in
another NPRM.
We plan to minimize the impact of non-meritorious applications by
adjusting the audit mechanism in the new system as needed. We have the
authority under the regulations to increase the number of random audits
or change the criteria for targeted audits. As we gain program
experience, we will adjust the audit mechanism as necessary to maintain
program integrity. We also note that under section 656.21(a) the CO has
the authority to order supervised recruitment when he or she determines
it to be appropriate.
2. Proposals for a Two-Tier System
Several commenters believed the automated processing under the new
system would lead to a flood of non-meritorious applications that would
clog the system. ACIP, for example, worried a large increase in
fraudulent applications could lead to long backlogs and possibly an
oversubscription of visa numbers. To address the potential flood of
non-meritorious applications, ACIP, the American Immigration Lawyers
Association (AILA), and others proposed a two-track system for
processing applications. Many proponents of a two-track system observed
by devoting fewer resources to readily approvable applications, DOL
could devote more resources to more problematic cases.
The proposals for a two-track system varied, but all envisioned a
category of employers or jobs that would qualify for special treatment.
Three universities proposed creating a class of ``registered'' or
``established'' users, whose applications would be exempt from random
audit but who would have to file annual reports with DOL. Two of these
commenters explained how established users could be identified:
Employers could submit an application form to DOL, which could review
the employers' history of labor certification filings. The two
commenters pointed to the blanket L program, run by DHS, and the J-1
program, run by the Department of State, as examples of how such a
program could work. A third university suggested alternatives to the
random audit of what it referred to as the ``automated electronic labor
certification request method.'' One alternative was to implement an
Established Users Program whereby university, non-profit research, and
government institutions could be trained and certified in the
submission of electronic labor certification requests. Another
alternative was to require these institutions to submit an annual
report to DOL based on pre-determined specifications.
ACIP also referenced the blanket L and J visas and proposed that
attestation-based filing be reserved for two categories of applications
that would qualify for a ``pre-certification track.'' One category
would focus on the employer and the employer's track record with DOL;
this would include employers who showed they were good-faith users of
the system by meeting certain specified criteria. The other category
would focus on the nature of the occupation and shortages in the
economy; this would include occupations listed on an updated Schedule
A. Applications in either of these two categories would have no
specific recruitment requirements. All other applications would be
processed on a ``standard'' track; these applications would have
requirements similar to, but less than, the current requirements for
Reduction in Recruitment (RIR) processing.
Two high-tech companies supported ACIP's call for a pre-
certification procedure for established users. One also recommended
only publicly traded companies be allowed to use an attestation-based
system because these companies would be far less likely to file
fraudulent applications.
Another commenter favored a two-tier system that categorized
applications based on their job requirements. Tier 1 would be reserved
for applications that contained no special skills, no experience
exceeding the specific vocational preparation (SVP) level for the
position, etc. Tier 1 applications would be filed according to the
procedures outlined in the proposed rule. All other applications would
fall into Tier 2, and would be filed according to the procedures for
basic processing under current regulations.
AILA recommended integrating an RIR option into the new system, to
accommodate employers that conduct ongoing recruitment for multiple
openings, and that might fail to satisfy the recruitment requirements
outlined in the proposed rule. To do this, DOL
[[Page 77330]]
would need to set standards in three areas: RIR eligibility,
recruitment requirements, and reporting recruitment results. AILA
suggested recruitment be required over only a 2 or 3 month period.
AILA also proposed expanding Schedule A to include a special group
for labor shortages by geographic area, to respond to acute labor
shortages in a timely manner. AILA was of the opinion that substantial
data on job openings in particular labor market areas could be
extracted from the attestation-based applications, and this data could
be used to determine when and where labor shortages occur or disappear.
The single-track, attestation-based system outlined in the proposed
rule was designed to ensure the most expeditious processing of cases,
using the resources available. We do not believe a two-track system
would result in significant, if any, savings of time and resources.
Proponents of a two-track system provide no statistical evidence of
potential savings gained by establishing a pre-certification track. Any
savings may be offset by the costs of establishing and administering a
two-track system. They may also be offset by an increase in the amount
of resources needed to process the ``second'' track of cases.
Most of the proposals for a two-track system envision fewer, if
any, recruitment requirements for one category of employers or
applications. Under ACIP's proposal, all applications would have fewer
recruitment requirements than they would have under the proposed
regulations. Were we to adopt any one of these proposals, the Secretary
of Labor would be unable to carry out the statutory obligation to
certify that no U.S. qualified workers are available. For example,
under an established users program, employers could qualify on the
basis of their history of filings. However, an employer's past practice
has no bearing on whether qualified U.S. workers are available for the
current job opening. Additionally, economic conditions may change
radically over time, which would justify a different approach to assess
whether qualified U.S. workers were available. Further, because the
proposed system is new and contains new recruitment requirements, at
least for the first few years there would be no appropriate past
practice to review. Comparisons to the L and J programs are also
inappropriate. Both of these programs involve temporary visas, and
neither depends upon the unavailability of U.S. workers.
Finally, all of the suggestions for a two-track system do more than
modify the proposed rule; they envision a different approach to case
processing than the approach outlined in the proposed rule. Some of the
proposals for a two-track system and Established Users program are
fairly detailed; others are less clear. None of the proposals could be
adopted as described in the comments. We do not believe the arguments
made in favor of a two-track system are sufficiently compelling to
justify formulating a new proposed rule.
Some of the proposals for a two-track system envision aggressive
management of Schedule A, to reflect more current shortages in the
labor market. We believe it would be inappropriate to make changes to
Schedule A in this final rule. However, it may be productive to
consider whether we could create a more flexible Schedule A in the
future. See our discussion of Schedule A in Section D below.
B. Role of the State Workforce Agencies
Under the proposed system, SWAs will no longer receive or review
applications. They will, however, continue to provide PWDs.
1. Loss of State Workforce Agency Expertise
Many commenters expressed concerns about the loss of SWA expertise
on local labor markets as a result of centralized processing.
A few commenters felt the revised process would not be more
efficient because the additional workload associated with cases pulled
for audit would exceed the resources available to the COs and would
result in backlogs. Another commenter felt the shift in workload from
the SWAs to the COs would place unnecessary burdens on COs who may not
have extensive knowledge of local labor markets or experience in
navigating the various state employment service systems.
Another commenter contended the proposed rule failed to consider
that many employers, unfamiliar with the labor certification process
and without the assistance of attorneys or representatives, routinely
file incorrect or incomplete applications. This commenter envisioned
that without the benefit of the SWA's expertise, the increase in
correspondence between employers and regional offices would lead to
backlogs similar to those under the current system.
FAIR recommended the following revisions:
Give COs discretion to forward any labor certification
application selected for audit to a SWA for confirmation;
Authorize SWAs, based on a ``reasonable-basis'' complaint
from the public or on their own information and belief, to require an
audit of any application within the SWA's jurisdiction; and
Require notices posted pursuant to 20 CFR 656.10(d) to
include the name, address, and contact information for the local SWA
where a complaint may be filed.
The AFL-CIO viewed limiting the role of the SWA to providing PWDs
as a severe deficiency of the new system that would lead to increased
fraud and abuse.
Because of resource constraints, among other things, state
processing adds considerable time to the processing of applications in
the current system. We believe we can retain the benefits of state
labor market expertise without having state staff processing
applications and thereby save significant processing time and expense.
We view centralized application processing as a customer-friendly
change that will simplify the labor certification application process,
remove duplicative efforts that occur at the state and Federal levels,
and result in greater consistency in the adjudication of cases.
We believe the COs possess sufficient knowledge of local job
markets, recruitment sources, and advertising media to administer the
program appropriately. We have acquired much expertise during our
administration of the current system and expect to maintain this
expertise under the new system. Currently, we assess the adequacy of
the recruitment before making a final determination in each case. We
will be making similar judgments under the new system in the course of
making determinations on the labor certifications, auditing
applications and in overseeing any supervised recruitment.
Guam requested it be allowed to continue its current role in
processing labor certifications. We do not believe Guam's circumstances
are so unique that it must have a role in processing the applications
to protect the wages and working conditions of U.S. workers. Its role
under the current permanent labor certification regulations is no
different than of the other states and territories that have a role in
the current permanent labor certification program.
2. Job Bank Orders
One commenter inquired how DOL intends to verify job order
referrals with SWA staff, screen resumes received while conducting
supervised recruitment, verify layoffs have not occurred in the last 6
months in the area of intended employment, verify the employer is a
bona fide employer with
[[Page 77331]]
an active Federal Employer Identification Number (FEIN), and answer
employer questions and provide technical assistance. The commenter
recommended the continued involvement of SWAs in conducting supervised
recruitment for employers in their states.
Another commenter was concerned the proposed rule does not
specifically authorize states to reject illegal specifications in job
orders or make it clear the SWA has this authority. Therefore, this
commenter recommended DOL add a provision to reinstate the ban against
illegal job duties and requirements, and to make it clear that
employers who refuse to delete illegal duties or requirements will not
be allowed to submit their application.
Still another commenter noted under the proposed rule all jobs must
be listed in a Job Bank, which will result in an increased burden on
the SWAs. The commenter suggested if user fees are not required, the
Federal government should cover this additional cost as part of the
alien labor certification process. The commenter also recommended: (1)
Using the SWA's resume unit staff to process these Job Bank orders
after the current backlog decreases, and (2) tracking labor
certification applications to monitor employers' recruiting efforts.
Under the new regulation, job orders submitted under Sec.
656.17(e) will be indistinguishable from any other job orders placed by
employers. Referrals will be handled the same way they are handled for
other job orders, which may vary from state to state. Under supervised
recruitment, applicants will be directed to respond to the CO. Issues
regarding layoffs are addressed in the preamble discussion of Sec.
656.17(k).
The general instructions in this final rule, at 20 CFR 656.10(c)
provide the employer must certify the conditions of employment listed
on the Application for Permanent Employment Certification (Form ETA
9089). These attestations include certifying the job opportunity does
not involve unlawful discrimination and the terms, conditions, and
occupational environment are not contrary to Federal, state, or local
law. Furthermore, although not specified in this final rule, the SWA
can not accept job orders that are not acceptable under the Employment
Service Regulations in 20 CFR parts 651 through 658.
We have not determined whether any additional funds will be
provided for any increased expenses resulting from employers submitting
job orders under the recruitment provisions at 20 CFR 656.17(e) of this
final rule. It should be noted, however, all such activities are within
the scope of the Wagner-Peyser Act, that processing job orders required
under this final rule are covered by existing Wagner-Peyser grants, and
we are not required to provide additional funds to the SWAs.
C. Definitions, for Purposes of This Part, of Terms Used in This Part
The proposed rule made several changes in Sec. 656.3 to the
definitions of the terms used in part 656.
1. Definition of the Area of Intended Employment
The proposed rule defines an ``area of intended employment'' as the
area within normal commuting distance of the place (address) of
intended employment. There is no rigid measure of distance that
constitutes a normal commuting distance or normal commuting area
because there may be widely varying factual circumstances among
different areas. If the place of intended employment is within a
Metropolitan Statistical Area (MSA) or Primary Metropolitan Statistical
Area (PMSA), any place within the MSA or PMSA is deemed to be within
normal commuting distance of the place of intended employment; however,
all locations within a Consolidated Metropolitan Statistical Area
(CMSA) will not be deemed automatically to be within normal commuting
distance. The borders of MSAs and PMSAs are not controlling in
identifying the normal commuting area; a location outside of an MSA or
PMSA (or a CMSA) may be within normal commuting distance of a location
that is inside the MSA or PMSA (or CMSA). We acknowledge that the
terminology CMSAs and PMSAs are being replaced by the Office of
Management and Budget (OMB). However, we will continue to recognize use
of these area concepts as well as their replacements.
One commenter touched on the definition of area of intended
employment in its discussion of alternate published surveys used to
document the prevailing wage (see our discussion of prevailing wages
below). The commenter noted that some surveys list data for only the
CMSA or for a region of a state. While recognizing these surveys may
include employers from outside the normal commuting distance, the
commenter felt it was highly unlikely that prevailing wage rates are
that sensitive to commuting distance.
We reject the proposal to allow data from broader geographical
areas because our program experience indicates that wage rates vary
with commuting distance.
2. Definition of the Employer and Employment
The definition of employer in the proposed rule reflected
longstanding DOL policy, and has been modified to ensure that persons
who are temporarily in the United States can not be employers for the
purpose of obtaining a labor certification. In addition, the definition
of employment has been modified to specify that job duties performed
totally outside the United States can not be the subject of a permanent
application for alien employment certification.
Some commenters touched on the definition of ``employer.'' A DOL
employee proposed amendments to the definition of employer to address
situations in which all workers at the place of employment are
independent contractors and the creation of an employee position is
contingent on the granting of a labor certification. The commenter was
concerned the term ``worker'' in subparagraph (1) could be construed to
include independent contractors, and wanted to amend the regulation to
make it unambiguous that the job opening must be for an employee
position, not an independent contractor position. Specifically, the
commenter proposed to either amend the regulation to add the phrase
``that has an employer-employee relationship with its workers'' or
change ``a full-time worker'' to ``a full-time employee'' or change the
definition of ``job opportunity'' to read ``a job opening for an
employee'' instead of ``a job opening for employment.''
In this final rule, the definition of employer has been clarified
by removing from the first sentence the phrase ``full-time worker'' and
adding the phrase ``full-time employee'' in lieu thereof. Further, a
sentence has been added to the definition to underline that a
certification can not be granted for an Application for Permanent
Employment Certification filed on behalf of an independent contractor.
A SWA recommended including holders of temporary visa types (i.e.,
B--visitor's visa) on the list of persons who are temporarily in the
United States and, therefore, are not included in the definition of
employers for the purpose of obtaining a labor certification.
We agree that the list should include persons on a B visa.
Therefore, this final rule adds visitors for business or pleasure to
the list of persons who are temporarily in the United States and who
can not be employers for the
[[Page 77332]]
purpose of obtaining a labor certification.
3. References to the Immigration and Naturalization Service
This final rule reflects the creation of the Department of Homeland
Security and the attendant government reorganization. All references in
the proposed rule to the Immigration and Naturalization Service (INS),
in the Department of Justice, have been changed to either Department of
Homeland Security (DHS) or the United States Citizenship and
Immigration Services (USCIS), in the Department of Homeland Security.
4. Definition of the Standard Vocational Preparation and Educational
Equivalents
The proposed rule defined the term ``Standard Vocational
Preparation (SVP)'' as the amount of lapsed time required by a typical
worker to learn the techniques, acquire the information, and develop
the facility needed for average performance in a specific job-worker
situation. Lapsed time is not the same as work time; for example, 3
months of lapsed time refers to 3 calendar months, not 90 work days.
The definition includes a list of SVP levels and the corresponding
amount of lapsed time for each.
A university commenter noted the SVP level is for the most part
unknown to most employers, and thanked DOL for including the
information in the regulations. However, the commenter felt the
regulations should also include the table of educational equivalencies
used to determine how many years of experience a given degree or course
of study is worth. The commenter noted the employer's job requirements
can not exceed the SVP level assigned to the job, and complained the
SVP values do not adequately reflect the actual amount of experience
and education required for specific positions. Citing full professors
as an example, the commenter noted the assigned SVP level is 8, which
means the employer may require between 4 to 10 years of combined
education and experience; however, universities rarely hire anyone who
has a Ph.D. (equivalent to 7 years of experience) and only 3 years of
experience. A second commenter simply asked that this final rule
clarify the O*NET job zones that are referenced in the preamble to the
proposed rule at 67 FR at 30472.
With respect to the commenter's concern that the proposed rule does
not allow an employer to use job requirements that exceed the SVP level
assigned to the occupation, this final rule reinstates a business
necessity test for job requirements that exceed the SVP level assigned
to the occupation. See our discussion of business necessity below.
Revision of the SVP is beyond the scope of this rulemaking.
ETA plans to utilize the guidance provided in the administrative
directive Field Memorandum No. 48-94, issued May 16, 1994, Subject:
Policy Guidance on Labor Certification Issues (FM). In summary, the FM
provided that a general associate's degree is equivalent to 0 years
SVP, a specific associate's degree is equivalent to 2 years; a
bachelor's degree is equivalent to 2 years; a master's degree is
equivalent to 4 (2 + 2) years; and, a doctorate is 7 (2 + 2 + 3) years.
In administering this final rule, the Dictionary of Occupational
Titles (DOT) will no longer be consulted to determine whether the
training and experience requirements are normal; O*NET will be used
instead. It should be noted, however, the job opportunity's job
requirements, unless adequately arising from business necessity, must
be those normally required for the occupation and must not exceed the
Specific Vocational Preparation assigned to the occupation as shown in
the O*Net Job Zones. More information about O*NET, including the O*NET
job zones can be found at http://online.onetcenter.org/.
5. Definition of the State Employment Security Administration
One commenter noted the acronyms ``SESA'' and ``SWA'' are used
interchangeably in some parts of the proposed rule; for example, Sec.
655.731(a)(2)(ii)(A)(3) uses SESA. The commenter recommended to avoid
confusion, the definition of ``State Employment Security Agency'' be
modified to include the phrase ``now known as State Workforce Agency''
before the acronym SWA. As if to underscore the confusion, a second
commenter thought the use of SWA in the definition was a typographical
error.
We are amending only one section in part 655 subpart H of the Code
of Federal Regulations. We use SESA in Sec. 655.731 to be consistent
with part 655 subpart H (dealing with H-1B and H-1B1 applications),
which references the SESA. However, in Part 656, we use SWA throughout.
We have modified the heading of the definition in Sec. 656.3 to read
``State Workforce Agency (SWA), formerly known as the State Employment
Security Agency (SESA).''
D. Electronic Filing of Applications
In the Notice of Proposed Rulemaking (NPRM), we proposed that the
employer would submit two forms to an ETA application processing
center. These forms were designed to be machine readable and we
anticipated most employers would submit them by facsimile transmission
to an ETA application processing center.
1. Electronic Filing
Many commenters indicated the forms published with the NPRM were
not ``user friendly'' because they were designed to be machine readable
to facilitate submission by facsimile transmission. Many commenters
indicated because of problems during the implementation of the LCA
``Fax-back'' system for H-1B applications, we should not require
submission of the form by facsimile transmission. In view of the
success of electronic filing of H-1B applications, commenters
recommended we use a system based on electronic filing in the
redesigned permanent labor certification process.
We have decided to implement the redesigned labor certification
process using an electronic filing and certification system. This
system is partially modeled after the system used for filing and
certifying labor condition applications under the H-1B nonimmigrant
program. Employers will also have the option to submit applications by
mail.
Under the e-filing option, the Application for Permanent Employment
Certification (ETA Form 9089) must be completed by the user on-line.
The system will assist the employer by checking for obvious errors, and
will input the information into an ETA database. This will speed the
process of evaluating the application, and help to prevent data entry
errors. ETA will accept mailed ``hard copy'' applications from those
who either have no access to the internet or simply choose to submit a
form completed by hand. Submission of applications by facsimile
transmission will not be accepted, because our experience indicates
facsimile submissions can not be relied on for consistent, error-free
receipt and return of applications. We have determined that average
processing time will be considerably shortened if we limit submission
of applications to electronic filing or by mail. Applications submitted
by mail will not be processed as timely as those filed electronically.
The comments pertaining to user friendliness were considered in
designing the electronic filing system and consolidating the
Application for Permanent Employment Certification and Prevailing Wage
Determination Request (PWDR) form proposed in the NPRM into a single
application form (see discussion below). We believe the
[[Page 77333]]
consolidated form addresses virtually all of the issues regarding the
lack of ``user friendliness'' of the proposed forms. For example, as
suggested by commenters, the items formerly on the PWDR, such as the
job description and requirements and prevailing wage determination, are
now on the application form.
Employers will, as discussed below in the section on prevailing
wages, request a PWD using the form required by the state in which the
job is being offered. Information from the state's prevailing wage
determination request form, such as the prevailing wage, occupational
code, occupational title, state determination number, and the date the
determination was made, will be included on the application form. The
employer will be expected to retain the state prevailing wage
determination form to furnish to the CO if requested to do so in the
event of an audit or otherwise.
2. Elimination of the Prevailing Wage Determination Request Form (ETA
9088)
Under the current permanent labor certification program, requests
for PWD are made to the SWAs on the various forms the SWAs have
developed for employers to use in submitting such requests. The NPRM
sought to standardize the process whereby employers make requests to
the SWAs for PWD by proposing all requests be submitted on the PWDR.
However, after reviewing our experience under the H-1B program with the
FAX-based filing system and the comments received on this issue we have
decided to implement electronic filing by the use of a consolidated
form. The consolidated form includes most of the items proposed for the
Application for Permanent Employment Certification and the information
that would have been provided by the PWDR. This includes the
information that the employer would have provided on the PWDR, such as
the job description and job requirements, as well as the information
that the SWAs would have entered on the PWDR, such as the prevailing
wage determination and the SWA tracking number.
Another reason why we have chosen not to require one standardized
form be used by employers to submit requests for prevailing wage
determinations to the SWAs is because such a requirement would, in
effect, impose an unfunded mandate on the SWAs to develop computer
systems to support the proposed PWDR. It also became evident that,
assuming funding were available to develop the computer systems
necessary to support the PWDR, several years would elapse before such
systems would be operational in all of the SWAs.
Accordingly, employers will continue the practice of requesting PWD
from the SWAs on the various forms developed for this purpose by the
SWA.
3. Multiple Beneficiaries
One commenter suggested DOL allow a single application to be used
to support multiple vacancies/beneficiaries. Multiple beneficiary
applications are discussed under the basic process below.
4. Assistance in Completing the Application Form
Several commenters suggested DOL provide assistance in completing
the application form. Among the suggestions were the creation of a
toll-free number, an instruction handbook, and detailed instructions on
the internet. We hope to make all of these methods available, although
some may not be available upon initial implementation of the new
system.
5. Recommended Changes to the Application Form
Commenters provided many specific suggestions for both the
application form and the instructions. Those suggestions have been
reviewed and many have been incorporated into the revised ETA Form 9089
and instructions, which have been submitted to the OMB for approval and
follow the final rule. The changes most often requested and our
responses are provided below.
Include on the first page a box for the employer to
indicate whether the request is for a Schedule A occupation, with
instructions reminding the user that, for Schedule A occupations, the
recruitment sections of the form need not be completed and the form
should be submitted directly to USCIS for processing. We have modified
the form to include these suggestions.
Clarify on the form that the ``special requirement
process'' includes the optional process for college and university
teachers. We removed the ``special requirement process'' item and,
under the recruitment section, included the optional process for
college and university teachers.
Change the term ``Education or Training: Highest Level
Required'' (see the proposed ETA Form 9088, Item section H) to
``Education and Training: Minimum Level Required.'' We have modified
the new form 9089 to include this suggestion.
We addressed the comments regarding the need to specify
technical degrees by adding a blank space identified as ``Other.'' This
change allows the degree to be filled in by the employer. The number of
technical degrees that commenters wished to have identified was too
large to incorporate as a checklist on the application form.
Change Wage Offer Information (see the ETA Form 9089,
section G) to read: Offered Wage Range, From: ---- To: ----. Several
commenters indicated the form should ask for a wage range instead of a
specific wage rate. We have made this change to clarify that employers
can offer a wage range as well as a specific rate as long as the bottom
of the wage range (reflected in the ``From'' box) is not below the
prevailing wage.
One commenter requested there be a box on the application
form allowing the employer to go directly to supervised recruitment,
rather than conduct pre-filing recruitment. We have decided not to
provide this option to employers. The supervised recruitment process is
lengthy, and is one of the reasons the current system is severely
backlogged. Supervised recruitment will be conducted only if ordered by
the CO.
E. Schedule A
The proposed rule did not change the general requirements for
Schedule A pre-certification. It proposed a technical change for the
description of Group I professional nurses, specifying that only a
permanent, full and unrestricted state license from the state of
intended employment may be used as an alternative to passage of the
Commission on Graduates of Foreign Nursing Schools examination (CGFNS).
It also proposed moving aliens of exceptional ability in the performing
arts (included under Sec. 656.21a(a)(1)(iv) of the current
regulations) to Group II of Schedule A.
We received several comments about the requirements for pre-
certification for professional nurses. A number of commenters proposed
additional occupations and classes of aliens to be added to Schedule A.
No commenters objected to moving aliens with exceptional ability in the
performing arts to Group II of Schedule A.
1. Nurses
As proposed, an employer seeking permanent labor certification for
a professional nurse must file, as part of its application with the
DHS, documentation the alien has passed the CGFNS examination.
Alternatively, the employer may document the alien has a permanent,
full and unrestricted license
[[Page 77334]]
to practice nursing in the state of intended employment.
A number of commenters suggested changes in the proposed rule that
would allow a greater number of nurses to receive certification under
Schedule A. Several commenters addressed the requirement that foreign-
trained nurses must demonstrate passage of the CGFNS examination. One
commenter supported the proposed rule's requirements for handling
Schedule A applications, including the option of documenting that the
alien holds a permanent license as an alternative to passage of the
examination.
Three commenters mistakenly thought that we were removing passage
of the CGFNS examination as a means of certification. This appears to
have been a misunderstanding of the preamble to the proposed rule,
which stated: ``only a permanent license can be used to satisfy the
alternative requirement to passing the [CGFNS] exam'' (see 67 FR at
30469). The proposed rule did not delete passage of the CGFNS
examination as documentation of eligibility as a Schedule A
professional nurse. The only change proposed was to specify that the
full and unrestricted state license must be a permanent license. This
revision conforms the general descriptions of aliens seeking Schedule A
certification as professional nurses at Sec. 656.5(a)(2) to the
procedures regarding documentary evidence to support a Schedule A
certification at Sec. 656.15(c)(2).
One commenter requested clarification as to whether the rule
requires a CGFNS Certificate or simply evidence of passing the CGFNS
nursing skills examination. The commenter noted that successfully
passing the CGFNS nursing skills examination results in issuance of a
``pass'' letter. The CGFNS Certificate is only issued if the individual
has passed the nursing skills examination, demonstrated English
language proficiency (by passing the Test of English as a Foreign
Language or a similar exam) and CGFNS has made a favorable evaluation
of the individual's nursing credentials. This and another commenter
requested the regulation be clarified to specify that passage of the
CGFNS nursing examination, and not a CGFNS Certificate, is adequate
documentation to satisfy Sec. 656.15(c)(2).
After reviewing the comments, and information from CGFNS, we have
modified the proposed rule to require in this final rule a CGFNS
Certificate, not merely proof that the alien has passed the CGFNS
nursing skills examination. When the current regulation was drafted
CGFNS did not issue a Certificate, but instead required applicants to
pass a test that evaluated both English proficiency and nursing skills.
As such, we understood passage of the CGFNS nursing examination to
include both factors. We believe proficiency in English is essential to
perform the job duties of a professional nurse in the United States,
due to the need to communicate with doctors and patients. The current
CGFNS Certificate is analogous to passage of the old CGFNS nursing
exam.
Several commenters supported adding a provision allowing alien
nurses who pass the National Council Licensure Examination for
Registered Nurses (NCLEX-RN), administered by the National Council of
State Boards of Nursing (NCSBN), to qualify for Schedule A. The
commenters contended that because every state requires passage of the
NCLEX-RN before issuing a permanent license, proof of passing should be
another means to qualify under Sec. 656.5(a)(2). Although the
availability of the examination only in the U.S. and its territories
had been a burden for foreign-trained applicants in the past, the
commenters noted that the NCLEX-RN is being given in more locations
abroad and some organizations bring foreign nurses to the U.S. to take
the examination.
Our intent in promulgating the existing and proposed 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. We have determined that passage of NCLEX-RN
examination is consistent with and furthers the policy rationale for
allowing CGFNS Certification as an alternative to holding a permanent,
full and unrestricted license to practice nursing in the state of
intended employment. This final rule includes a provision in Sec.
656.15 allowing certification by demonstrating passage of the NCLEX-RN.
A few commenters noted procedural problems posed by the requirement
of a permanent state license in the state of intended employment.
Commenters asserted many states will not issue a permanent license
until the applicant has a Social Security number, even when the nurse
has passed the NCLEX-RN. Because the NCLEX-RN is the final hurdle to
the practice of nursing in a state, the commenters urged DOL to allow a
foreign nurse to satisfy the permanent license requirement by having a
letter from a state nursing board attesting to the nurse having passed
the NCLEX-RN and having full eligibility for the RN license, pending
receipt of a Social Security card. A commenter noted Alaska and a few
other states already follow this practice.
Other commenters identified additional state-imposed obstacles to
using the permanent license alternative, including refusal to issue a
permanent license until the foreign-trained nurse has arrived in the
United States, or requirements for in-state residence, a valid visa,
and fingerprint screening. Allowing a foreign-trained nurse to satisfy
the permanent license requirement by documenting success on the NCLEX-
RN would also alleviate these barriers, according to the commenters.
Two commenters raised a related issue about nurses who hold a
permanent license in one state and are the beneficiary of a petition
for employment in another state. In this situation, the alien nurse
would not have to pass an examination in the second state, but would
initially be given a temporary license in order to practice. The
commenters maintained this type of temporary license should be
distinguished from those situations in which the alien does not have a
permanent license in any state. Because it believed that a temporary
license in this situation is the functional equivalent of a permanent
license, AILA suggested DOL add the following additional alternative to
Sec. 656.15(c)(2), to include alien nurses ``who hold a temporary
license in the state of intended employment and require no further
examination to attain permanent licensure in that state.''
We have decided not to recognize temporary licensure in the state
of intended employment. As we have broadened the rule to include
passage of the NCLEX-RN as qualifying for Schedule A, we believe
virtually all alien nurses who have temporary licensure would be
covered under this rule. This avoids any need to distinguish between
different types of temporary licenses. In addition, the NCSBN indicates
several states have passed legislation authorizing Nurse Licensure
Compacts, which allow a nurse licensed in his or her state of residence
to practice nursing in another state. It is anticipated that most
states will pass legislation to authorize the Nurse Licensure Compact,
and adopt the mutual-recognition model of nurse licensure. In the event
of such legislation being passed, concerns raised by several commenters
where an alien nurse is licensed in one state, but is sponsored to
practice in another state, would be resolved.
[[Page 77335]]
2. Performing Artists
We received several comments supporting the proposal to add
performing artists of exceptional ability to Group II of Schedule A. No
commenters opposed this proposal. Accordingly, this final rule provides
that performing artists of exceptional ability are included in Group II
of Schedule A.
3. Expansion of Schedule A
Several commenters recommended expansion of Schedule A to pre-
certify certain occupations or classes of aliens.
A high-tech company recommended expanding Schedule A occupations to
provide for an ``earned'' labor certification for otherwise excluded
foreign nationals when beneficial to the U.S. economy. This category
would include employees who gained irreplaceable experience on the job,
performed unusual combinations of duties or key duties; or who worked
for the employer or its subsidiaries for a specified period of time,
either within or outside the U.S.; and employees whose efforts had
created jobs for U.S. workers. The commenter claimed including these
categories under Schedule A would not interfere with streamlining and
would protect U.S. workers, relieve DOL of its adjudication
responsibilities because its burden would be shifted to USCIS Service
Centers, and would afford an outlet to a deserving class that would
otherwise be denied access to permanent residency under the proposed
rule. Similarly, AILA recommended expanding Schedule A occupations to
accommodate ``special merit'' foreign nationals, including company
founders and managers; key employees in managerial, executive, or
essential positions in affiliated, predecessor, or successor-in-
interest companies; employees who have been employed by a U.S. employer
for a certain number of years and gained irreplaceable training and
experience in distinct positions; and employees central to the
existence of the employer.
Another commenter expressed concern that the proposed rule would
adversely affect small businesses by declaring a large number of
deserving aliens to be ineligible for labor certification. The
commenter pointed to a list of such deserving but ineligible aliens:
small business investors; employees in key positions who previously
worked for affiliated, predecessor, or successor entities; employees
who gained essential experience with the sponsoring employer; employees
who are required to perform rare or unusual combinations of duties; and
alien workers who are so inseparable from the sponsoring employer the
employer would be unlikely to continue in operations without the alien.
The commenter urged expanded use of Schedule A to cover these classes
of aliens who would otherwise be denied access to permanent residency.
All of these comments fail to address the core premise for Schedule
A; namely, pre-certification of occupations for which there are few
qualified, willing, and available U.S. workers. Most of the categories
suggested by commenters, such as key employees, employees with special
or unique skills, and small business investors are not occupational
categories; instead, as admitted by most of the commenters, they are
categories of foreign workers. In light of our revisions to Sec.
656.17(h) and (i) regarding job requirements and actual minimum
requirements, some foreign workers with special or unique skills might
be eligible for labor certification under the basic process. Regarding
alien workers who are so inseparable from the sponsoring employer that
the employer would be unlikely to continue in operation without the
alien, we have long held the position that if a job opportunity is not
open to U.S. workers, it is not eligible for labor certification.
In addition to the above-cited categories, AILA proposed that
Schedule A be revised to clarify the distinction between aliens of
extraordinary ability, covered by 8 U.S.C. 1153(b)(1), and aliens of
exceptional ability, covered by Schedule A, Group II. AILA noted when
DOL published the regulations implementing the Immigration Act of 1990
(IMMACT 90), we recognized some aliens may qualify under Schedule A,
Group II, as aliens of exceptional ability but may not be able to
qualify as an alien of extraordinary ability. See 56 FR at 54923
(October 23, 1991). AILA claimed DHS has continued to apply DOL's pre-
IMMACT 90 definition of exceptional ability, and has denied eligibility
for Schedule A, Group II, unless the higher post-IMMACT 90 standard of
extraordinary ability can be satisfied. AILA recommended we revise the
definition of aliens of exceptional ability in a manner that makes
material distinctions between exceptional and extraordinary ability.
AILA suggested we develop a checklist of factors to establish
exceptional ability analogous to the DHS criteria for aliens of
extraordinary ability. AILA also suggested we allow the submission of
other ``comparable evidence'' to establish the alien's eligibility as a
worker of exceptional ability, and permit exceptional ability aliens
with a reasonable plan for job creation to self-sponsor under Schedule
A. AILA further suggested we add persons with exceptional ability in
business to Group II of Schedule A because business is a subset of
science.
Whether or not a given application or alien beneficiary qualifies
for Schedule A pre-certification is determined by DHS. We believe the
criteria for aliens of exceptional ability in the sciences or arts at
Sec. 656.15(d)(1) are clear and do not need to be revised. Except for
the recommendation we add a criterion for other comparable evidence of
exceptional ability, the commenter made no specific suggestions as to
how these criteria should be revised. We do not adjudicate Schedule A
applications, and DHS rarely contacts our office for advisory opinions
on these cases. If, as AILA claims, DHS has failed to adhere to the
appropriate regulatory standards in reviewing applications for aliens
of exceptional ability, recommendations for procedural changes should
be made to DHS, not to DOL.
We have determined that we will not add any new occupations or
occupational categories to Schedule A in this final rule not included
in the Notice of Proposed Rulemaking. To add an occupation to Schedule
A, we believe it is advisable to issue a proposed rule and provide an
opportunity for public comment.
Four university commenters urged DOL to include college and
university teachers under Schedule A. The commenters claimed because
virtually all such cases are certified under the current special
handling requirements of Sec. 656.21(a), these occupations should be
moved to Schedule A. The commenters asserted this would allow DOL to
focus its resources on other, less meritorious cases.
We have no evidence of a lack of qualified, willing, and available
U.S. workers in the occupation of college and university teacher.
Absent evidence of a lack of available workers, we see no compelling
reason why this occupational category should be added to Schedule A. If
a college or university teacher can be considered an alien of
exceptional ability in the sciences or arts, such an individual may be
eligible for Schedule A pre-certification under Sec. 656.5(b)(1).
Further, we note special recruitment procedures for college and
university teachers are available under this final rule.
AILA also suggested DOL create a provision for Schedule A that
would incorporate a flexible, just-in-time system for occupation
shortages. As
[[Page 77336]]
proposed by AILA, DOL would expand the use of technology already
inherent in the new system to collect real-world data on job needs in
particular job markets. DOL could then allow for flexible opening and
closing of a special Schedule A group in response to acute, localized
labor shortages.
As with the other proposals to expand the categories of workers
covered under Schedule A, the just-in-time system proposed by AILA
would require additional rule making. We are also unsure whether data
would be available to successfully implement such a system. While we
anticipate the automated system will capture data regarding occupations
being sponsored for labor certification, it is not clear all
occupations being sponsored for labor certification are experiencing a
lack of available workers.
4. Prevailing Wage Determination Requirement
Two commenters objected to the rule's requirement that an employer
must obtain a prevailing wage determination for Schedule A occupations.
One commenter asserted the current regulations do not require a
prevailing wage determination for professional nurses, and this
practice should continue. Similarly, AILA reasoned the wage
determination requirement was unwarranted and would impose an
unnecessary burden on the employer and the SWAs. AILA also contended
DOL has already determined that hiring of foreign workers for Schedule
A occupations will not depress wages for U.S. workers. As an
alternative, AILA suggested DOL amend the application form to include
an attestation that the employer is filing a Schedule A application,
and then add language exempting the employer from the requirement of
obtaining a SWA-issued prevailing wage. According to AILA, DHS requires
an employer offer letter or similar documentation describing the
position and offered wage.
This final rule retains the prevailing wage requirement for a
number of reasons. First, the employer has always been required to
certify that it is offering at least the prevailing wage for the
occupation. Second, the current as well as the proposed regulation
require an Immigration Officer to determine whether the employer and
alien have complied with Sec. 656.10, General Instructions, including
whether the employer has attested to the conditions listed on the
Application for Permanent Employment Certification form (ETA 9089),
which includes a requirement the employer attest it is offering at
least the prevailing wage. Third, the fact DHS asks for documentation
describing the position and offered wage has nothing to do with whether
the employer is actually offering the prevailing wage.
5. Technical Correction
We have corrected the reference at the end of the first paragraph
in Sec. 656.5, Schedule A from Sec. 656.19 to Sec. 656.15.
F. Elimination of Schedule B
We proposed to eliminate Schedule B because our program experience
indicated 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 basic
process. Whether or not an application for a Schedule B occupation is
certified is dependent upon the results of the labor market test
detailed in Sec. 656.21 of the current regulations.
A few commenters addressed the proposed change. Two commenters
supported the elimination of Schedule B. Both of these commenters
pointed out Schedule B occupations require little or no experience, and
employees can be trained quickly to perform them. Two commenters
opposed the elimination of Schedule B and suggested eliminating the
Schedule B waiver instead.
We can not maintain Schedule B without a provision for a waiver.
Schedule B is a list of occupations in which there generally are
sufficient U.S. workers who are able, willing, qualified and available.
It is not a blanket determination there are sufficient workers for the
occupations on Schedule B in every area of intended employment in which
employers may wish to employ foreign workers. Therefore, there must be
a waiver for employers located in areas in which the general
determination may not apply. Accordingly, this final rule does not
contain a provision for Schedule B occupations.
G. General Instructions
General instructions for filing applications, representation,
attestations, notice, and submission of evidence are provided in Sec.
656.10.
1. Financial Involvement
One commenter noted alien beneficiaries, not employers, drive the
labor certification process. The commenter suggested this final rule
require documentation of the employer's financial involvement, or,
alternatively, prohibit employers, agents, or attorneys from requiring
aliens to pay the costs of the labor certification process and provide
for penalties for imposing these costs on the alien beneficiary.
While the suggestion to have the employer provide documentation of
financial involvement may be of some merit, it was not included in the
NPRM, and is a major departure from past practice; consequently, we
believe we would have to issue a new proposed rule before we could
promulgate a rule requiring such documentation. We believe it is more
important to issue a final rule at this time to achieve the benefits
under this final rule than to substantially delay realization of such
benefits that would result by the issuance of another NPRM.
It should be noted, however, evidence that the employer, agent, or
attorney required the alien to pay costs could be used under the
regulation at Sec. 656.10(c)(8) to determine whether the job has been
and clearly is open to U.S. workers.
2. Representation
a. Attorneys and Agents
The NPRM did not propose any modifications to the provision in the
current regulation at 20 CFR 656.20(b)(1) (found in this final rule at
656.10) that allows employers and aliens to be represented by agents or
attorneys. However, two attorneys urged we eliminate representation of
employers and/or aliens by agents as provided in the current
regulation. The commenters advanced three reasons for their
recommendations. They maintained that:
Allowing representation by agents was contrary to statutes
in all 50 states prohibiting the unauthorized practice of law;
Unlicensed agents are the ones most prone to perpetuate
fraud on the Department of Labor and clutter the labor certification
processing system with frivolous or poorly prepared cases; and
DOL should issue a regulation similar to the one issued by
DHS at 8 CFR 292 that governs the representation of employers and
aliens before the DHS.
Amending the regulations at 20 CFR 656.10(b) as proposed by the
commenters would be a major departure from our longstanding practice
allowing representation by attorneys and agents, and may have serious
consequences for those individuals who are now allowed to represent
employers and/or aliens in the capacity of an agent. We believe it
would be prudent before making such a major change in our longstanding
practice and procedures to issue another
[[Page 77337]]
proposed rule and consider the comments we would receive on the
proposal.
b. Notice of Entry of Appearance (Form G-28)
Another commenter recommended employers as well as attorneys be
required to sign the Notice of Entry of Appearance (Form G-28). The
commenter maintained not requiring the employer to sign the Form G-28
encourages fraudulent practices, as employers at times have no
knowledge of the labor certification application or of the attorney
purporting to represent them.
The labor certification process provided by this final rule does
not require a Form G-28 if the employer is represented by an attorney.
Requiring a Form G-28 would be incompatible with the electronic filing
system provided for in this final rule. Elimination of the G-28 will
not inhibit or impede efforts to combat fraud. Under this final rule,
employers will be required to sign in section N of the Application for
Permanent Employment Certification an employer declaration which, among
other things, states the employer has designated the agent or attorney
identified in section E of the application form to represent it, and by
virtue of its signature, takes full responsibility for the accuracy of
any representations made by the employer's attorney or agent.
c. Retention of Documents by Attorney
One attorney believed some immigration attorneys admonish their
employer-clients to retain the enumerated recruitment documents for
their records but not supply the documents to the attorney so the
attorney can maintain plausible deniability for any document violation.
The commenter recommended the attorney of record should be required to
maintain copies of recruitment documents so he or she may be held
accountable for the content of the application form. We believe it is
sufficient under this final rule that the employer will be required to
furnish recruitment documentation in the event of an audit or as
otherwise required by a CO.
3. Attestations
Two commenters challenged the proposal in the NPRM to remove the
regulatory requirements that the employer attest to the ability to pay
the wage or salary offered to the alien worker and to place the alien
on the payroll on or before the date of the alien's entrance into the
United States. We have been informed that DHS is planning to amend its
regulation at 8 CFR 204.5(g), which currently focuses on the ability to
pay the proffered wage in the course of processing the employment-based
immigrant petition, to require evidence focusing on the bona fides of
the employer.
DHS does not have a regulation that focuses specifically on the
employer's ability to place the alien on the payroll on or before the
date of the alien's proposed entrance into the United States. Ability
to pay and the ability to place the alien on the payroll are not
necessarily the same. An employer can be fiscally solvent but it may
not be realistic, for example, to expect the plant or restaurant that
is in the planning stage or under construction at the time the
application is filed to be completed when the alien or U.S. worker is
available to be employed in the certified job opportunity.
After reviewing the comments and considering DHS' planned revisions
to its regulation, we have concluded that, in an attestation-based
program where in the majority of cases the employer's supporting
documentation will not be available to the reviewer, it is appropriate
to require the employer to attest to its ability to pay the alien and
to place the alien on the payroll. It should also be noted the
employer's ability to place the alien on the payroll is not addressed
by DHS regulations.
Similarly, although rejection of U.S. workers for lawful, job-
related reasons is dealt with in the regulation section on the
recruitment report, and although the permanent full-time nature of the
job opportunity, and required documentation is included in the
definition of ``employment,'' we have concluded it would be beneficial
in the context of an attestation-based system to add certifications
addressing these issues. We have revised the final rule accordingly.
4. Notice
a. Expansion of Notice Requirement
Several commenters addressed the expansion of the posting
requirement to require, in addition to posting a notice of the filing
of the ETA Form 9089 in conspicuous places at the employer's place of
employment, the employer 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.
Several commenters expressed concerns about the expansion of the
posting requirement in the NPRM. One commenter expressed the view the
information in proposed Sec. 656.10(d)(3) informing employees how they
can furnish documentary evidence bearing on the application to the CO
is not in accordance with normal recruitment procedures.
AILA stated employers do not normally post via in-house media for
certain positions, such as senior or executive positions, because of
confidentiality concerns. AILA suggested DOL amend the rule to provide
that an employer post internally through any and all media normally
used for other similar positions. A large employer asserted publishing
an employment posting in any and all in-house media is extraordinarily
broad and could be construed to include training films, publicity
postings, and a myriad of unrelated and unhelpful venues. This employer
suggested the requirement in Sec. 656.10(d)(ii) of the proposed rule
be changed to read ``(i)n addition, the employer must publish the
posting in accordance with the normal procedures used for the
recruitment of other positions in the employee's organization,''
thereby assuring that regular and accepted industry practices are
followed in the labor certification process.
Three universities were of the view the expanded posting
requirements would not yield many applicants for highly specialized
research and faculty positions. One university indicated it posted jobs
in on-line and in-house publications normally read by current or
potential employees. However, it did not publish faculty and academic
research positions at those locations, as it did not see any positive
result from doing so.
A SWA supported expanding the posting requirement to include any
and all in-house media. The SWA noted its experience indicated
employment postings are poorly presented and often virtually invisible
on employer bulletin boards.
Another SWA noted the current posting requirement has not provided
any applicants for job openings, and noted the expanded posting
requirement does not provide any incentive for current employees to
refer friends or relatives to the employer. The SWA recommended that
employers should be encouraged to include a finder's or referral fee in
the posted notice.
With respect to the comment concerning the requirements at Sec.
656.10(d)(3) in the proposed and final rule concerning the furnishing
of documentary evidence bearing on the application, Sec. 656.10(d)(3)
was drafted to implement the statutory requirement
[[Page 77338]]
provided by Section 122(b) of IMMACT 90 that provided for the current
notice requirement and provided, in relevant part, ``any person may
submit documentary evidence bearing on the application for
certification (such as information on available workers, information on
wages and working conditions, and information on the employer's failure
to meet the terms and conditions with respect to the employment of
alien workers and co-workers).'' It should also be noted the provision
at Sec. 656.10(d)(3) is similar to the provision in the current
regulation at 20 CFR 656.20(g)(3).
With respect to comments regarding the occupations subject to the
posting requirement and the requirement the employer post internally
through any and all media, it should be understood, as indicated above,
the notice requirement in the regulations has been a statutory
requirement since the passage of IMMACT 90. Section 122(b)(1) of IMMACT
90 provides no certification may be made unless the employer-applicant,
at the time of filing the application, has provided notice of the
filing to the bargaining representative or, if there is no bargaining
representative, to employees employed at the facility through posting
in conspicuous places. In our view, Congress' primary purpose in
promulgating the notice requirement was to provide a way for interested
parties to submit documentary evidence bearing on the application for
certification rather than to provide another way to recruit for U.S.
workers. See 8 U.S.C. 1182 note.
Because the notice requirement is statutory, we do not believe that
exceptions to the notice requirement could be based on the occupation
involved in the application. As one SWA noted, printed postings on
bulletin boards under the current regulation at 20 CFR 656.20(g) are
poorly presented and often virtually invisible. The posting regulation
at Sec. 656.10(d)(1)(ii) in this final rule provides, in relevant
part, the posting must be published in any and all in-house media in
accordance with the normal procedures used for the recruitment of other
similar positions. For example, we would not expect a posting in a
publication devoted to health and safety issues if job vacancies were
not normally included in that publication.
With respect to the recommendation by one SWA employee that
employers should be required to include a finder's or referral fee, we
believe it is inappropriate to provide such an incentive under the
posting regulations, because, as indicated above, the posting
requirement is not designed to be a recruitment vehicle. We have,
however, included referral incentives as one of the options employers
may use in recruiting for professional workers in Sec.
656.17(e)(1)(ii) of this final rule.
b. Notice for Schedule A Applications
AILA questioned our basis for requiring employers to comply with
the notice requirement for applications filed with DHS on behalf of
Schedule A occupations. AILA pointed out that Schedule A occupations
are by definition those for which DOL has already determined that there
are not sufficient U.S. workers who are able, willing, qualified, and
available for the occupations listed, and the wages and working
conditions of U.S. workers similarly employed will not be adversely
affected by the employment of aliens. Therefore, no recruitment is
required for Schedule A applications, and the adjudication of such
applications has been placed by the DOL under the jurisdiction of DHS.
AILA indicated it would serve no purpose for employers of Schedule A
applications to provide notice, and DOL should consider eliminating the
unnecessary posting burden for employers.
We have concluded employers must comply with the posting
requirement to file applications under Schedule A with DHS. As we point
out above, the statute provides no certification can be issued unless
the employer has provided the required notice. Second, as stated
previously, in our view Congress' primary purpose in promulgating the
notice requirement was to provide a means for persons to submit
documentary evidence bearing on the application. This could, for
example, include documentation concerning wage or fraud issues.
Requiring employers to provide notice of their Schedule A applications
is consistent with the practice under the current regulation at 20 CFR
656.20(g)(1). We have required employers to provide notice in
connection with their Schedule A applications since the passage of
IMMACT 90. See 56 FR at 54924.
c. Wage Range and Inclusion of Wage in Notice
AILA noted the NPRM proposed that items required to be included in
the recruitment advertisement (Sec. 656.17(f)), including the wage
offered, must also be included in the notice. AILA maintained the
salary ``is often not provided by most employers when using `in house
media' or is simply referred to by a grade level.'' AILA also
maintained an employer should be able to use a salary range in the
posting as long as the bottom of the range meets the prevailing wage.
AILA also said, after analyzing the interplay between Sec. Sec.
656.21(b)(6), 656.21(g)(6), and 656.21(g)(8) under the current
regulations, they construed the ``no less favorable than offered the
alien'' language in Sec. 656.21(g)(8) to require the employer to
advertise a wage offer no less than the alien's wage when initially
hired; assuming, of course, the wage offer also meets or exceeds the
prevailing wage.
Employers can use a wage range in the required notice. It is
longstanding DOL policy that the employer may offer a wage range as
long as the bottom of the range is no less than the prevailing rate.
See page 114 of Technical Assistance Guide No. 656 Labor Certifications
(TAG). However, the prevailing wage, which provides the floor for the
wage range, must be the prevailing wage at the time the recruitment was
conducted for the application for which the employer is seeking
certification, not the prevailing wage when the alien beneficiary was
initially hired.
The advertising requirements at Sec. 656.17(f) of this final rule
no longer include wage or salary information; however, the wage offered
must be included in the notice. The regulations implement the statute,
which provides ``no certification may be made unless the applicant for
certification has at the time of filing the application, provided
notice of the filing.'' Because the ETA Form 9089 includes the offered
wage, the employer must include in the notice the wage offered to the
alien beneficiary at the time the application is filed. Alternatively,
the employer may include a salary range in the notice, as long as the
bottom of the range is no less than the prevailing wage rate. The wage
paid to the alien when initially hired is irrelevant.
5. Timing and Duration of the Notice
A few comments addressed when notice must be provided and the
duration of the notice if it is accomplished by posting at the
employer's facility.
a. When the Notice Must Be Provided
AILA indicated the requirement in the NPRM that the notice must be
posted between 45 and 180 days before filing the application was
confusing in light of the recruitment provisions at Sec. 656.17(d) of
the NPRM, which requires recruitment be undertaken not less than 30
days or more than 180 days before filing the application. AILA
[[Page 77339]]
recommended the timing of the notice be consistent with the other
``advertising'' requirements. Another commenter also recommended that
notices of filing be posted 30 to 180 days prior to filing the
application.
As explained above, the notice requirement is primarily a medium to
obtain documentary evidence bearing on the application. We have
concluded it makes little sense to require notice be provided 45 days
before the application is filed when employers have 6 months to
complete the recruitment required under the regulations. Further,
making the time frames consistent with the timing requirements for
conducting recruitment in Sec. 656.17(e) would make the program easier
to administer and reduce the potential for confusion and error on the
part of employers filing applications for permanent alien employment
certification. Accordingly, this final rule provides notice should be
provided between 30 and 180 days before filing the ETA Form 9089.
b. Duration of the Notice
Two commenters observed the NPRM proposed the period the notice
must be posted be increased from 10 consecutive days to 10 consecutive
business days. One commenter indicated this increase was reasonable
because it would maximize viewing by U.S. workers. This commenter also
noted the notice requirement had been expanded to require posting in
any and all in-house media, whether electronic or printed, but the
proposed rule did not specify for how long. The commenter suggested the
additional in-house media ``advertising'' be required for 10 days. We
agree and the final rule provides that notice provided by posting to
the employer's employees at the facility or location of employment must
be posted for 10 consecutive business days. Posting in any in-house
media, whether electronic or printed, should be posted for as long as
other positions in those media are normally posted.
6. Notice to Certified Collective Bargaining Representative
The AFL-CIO maintained when a union has been certified as a
collective bargaining representative for workers employed by the
employer-applicant, the new regulations should require the union
receive notice when a labor certification application is filed.
Moreover, the union should be consulted to ascertain if there was an
organizing campaign or other labor disturbance, because the employer
may be attempting to thwart union efforts by replacing U.S. workers
with foreign workers. The interests of workers seeking to exercise
their rights to organize and bargain are indisputably harmed when
employers attempt to pack bargaining units with foreign workers during
an organizing campaign. For that reason, the AFL-CIO believed the
regulations should include a requirement that DOL obtain certification
from the National Labor Relations Board (NLRB) that there is no labor
dispute as defined in the DHS operating instructions at 287.3. The AFL-
CIO noted this definition of a labor dispute is broader than that
described under the permanent labor certification regulations. The
commenter also proposed if such a labor dispute arises after the labor
certification is filed, the employer should be required to inform DOL.
The AFL-CIO maintained DOL should also find a way for a union
representing workers in the same occupation for which a foreign labor
certification application was filed to have a formal and substantial
role in the process.
This final rule provides, pursuant to Section 122(b)(1) of IMMACT
90, and similar to the current regulations, that notice of the filing
of the labor certification application must be given by the employer to
the bargaining representative(s) (if any) of the employer's employees
in the occupational classification for which certification of the job
opportunity is sought in the employer's locations in the area of
intended employment.
We proposed no substantive changes to our current regulations
regarding the showing the employer must make with respect to a labor
dispute. Our program experience has not brought to light any reason why
the current regulations should be changed. This rule has been in effect
for over 20 years and our operating experience with this provision has
demonstrated it is adequate for the protection of U.S. workers.
Moreover, because our program experience points to the adequacy of the
current regulations with respect to labor disputes, we are reluctant to
make any changes to the labor dispute regulation that may not be
compatible with our efforts to streamline the labor certification
process.
With respect to having the employer inform us of a labor dispute
after the labor certification is filed, we do not believe such a
provision will be necessary in the new system. In the new system, we do
not contemplate in the majority of cases any significant delay between
the filing of a labor certification and its adjudication thus notice is
not necessary.
With respect to finding a way for the unions representing workers
in the same occupation to have a formal and substantial role in the
process, the AFL-CIO did not provide any suggestions as to what such a
role would be beyond the statutory notice requirement or the suggestion
that the union should be consulted to ascertain whether there was an
organizing campaign or other labor disturbance the employer may be
attempting to thwart by replacing U.S. with foreign workers, which we
have commented on above. Accordingly, this final rule makes no
provision for unions to have a formal role in the labor certification
process other than what was provided in the proposed rule.
7. Inclusion of Posting Requirements in Recruitment Advertisement
A SWA found the proposed expansion of posting provisions to be
insufficient to provide workers with a complaint system. The SWA
maintained the rule needs a mechanism to balance what the commenter
views as employer bias in favor of foreign workers and against U.S.
worker interests. The SWA recommended requiring that the wording of at
least one of the mandatory recruitment advertisements under proposed
Sec. 656.17(d) conform to the language of the in-house posting,
thereby giving U.S. workers who may be interested in or qualified for
jobs offered to aliens the opportunity to submit complaints to DOL.
This recommendation could be qualified by an exception for employers
who can document programs to train and develop U.S. workers for the
types of positions submitted for alien labor certification. On the
topic of complaints, another SWA recommended the final rule enable an
applicant to file a grievance against an employer within 30 days of an
interview. This SWA further suggested the employer give each applicant
a comment card for DOL's use if a complaint is filed.
Regarding the suggestion to include the notice information in one
of the required recruitment advertisements at Sec. 656.17(e), we do
not believe this is appropriate. As described above, this final rule
implements the statutory notice provision consistent with Congress'
intent. To require employers to place statutory notice requirements in
their recruitment advertising would be counterproductive, as it would
alert U.S. workers to the likelihood that the employer had selected an
alien worker for the advertised job opportunity. Consequently, U.S.
workers would likely be reluctant to expend the time and resources to
apply for jobs for which they believe the employer has pre-selected the
alien beneficiary of a labor certification application.
[[Page 77340]]
With respect to the SWA's comment suggesting we implement a
grievance system against the employer, the commenter did not explain
how such a system would work or what role we would play in the process.
We will accept documentary evidence about labor certification
applications and consider the evidence in deciding whether or not to
certify. We do not believe any more formal process is needed.
8. Retention of Documents
The Notice of Proposed Rulemaking did not contain any specific
record retention requirements. Record retention requirements were
implicit in the NPRM since it was stated, for example, in the preamble
that ``(t)he 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 were selected for
audit.'' See 67 FR at 30466. In discussing the audit process it was
indicated employers would be expected to have assembled and have on
hand all documentation necessary to support their applications before
they were submitted. 67 FR at 30475.
Additionally, the changes to the revocation regulation discussed
below strengthen the need for specific record retention requirements in
this final rule. As discussed below, because this final rule allows
certifications to be revoked if the certification was not justified, a
time limit has not been placed on the authority of the Certifying
Officer to revoke a labor certification. It is also our understanding
that DHS may want to review the employer's supporting documentation in
the course of processing the Form I-140 petition or for the purpose of
investigating possible violations of the Immigration and Nationality
Act. On the other hand, it would not be reasonable to require employers
to maintain supporting documentation indefinitely.
To resolve these competing considerations, in Sec. 656.10(f), this
final rule requires employers to retain supporting documentation for 5
years from the date the Application for Permanent Employment
Certification is filed with the Department. Currently, it takes
approximately 5 years to obtain a labor certification and an approved
I-140 petition.
H. Fees
The proposed rule contains a provision outlining how fees would be
implemented in the event Congress passes legislation implementing the
fee-charging language in the President's Fiscal Year 2005 Budget.
We received a variety of comments on the proposal to collect fees
to process applications for alien employment certification. Most of the
commenters supported fees only if they were reasonable, related to
actual costs, and used solely for the labor certification program. One
commenter opposed any fees that would seem to impose a penalty on
hiring aliens. At least one commenter supported fees as long as
services were delivered timely. Some commenters supported fees only if
they could be implemented in conjunction with electronic filing.
Two commenters opposed the imposition of fees. One commenter
objected because DOL has never imposed fees in the past. Another
commenter, who characterized DOL's role in the labor certification
process as adversarial, felt it was inappropriate to pay fees to a
hostile agency.
This final rule does not currently provide for collection of fees
because legislation has not been passed that would allow DOL to collect
fees and use the proceeds to process applications for alien labor
certification. However, in the event Congress does pass such
legislation, DOL will provide adequate notice and reserves the right to
collect program fees within this rule.
I. Labor Certification Applications for Schedule A Occupations
1. Filing Requirements
The only modification made to the proposed filing requirements for
Schedule A applications was to require the employer to file only one
form, the ETA Form 9089, rather than two.
2. Documentation Requirements for Nurses
As discussed above, proof of passage of the CGFNS examination will
not qualify an alien for Schedule A certification under the new system;
a CGFNS Certificate will be required instead. However, passage of the
NCLEX-RN examination will also qualify an alien for Schedule A
certification. Accordingly, Sec. 656.15(c) of this final rule provides
that an employer seeking a Schedule A labor certification as a
professional nurse must file, as part of its labor certification
application, documentation the alien has a CGFNS Certificate, has
passed the NCLEX-RN exam, or holds a full and unrestricted (permanent)
license to practice nursing in the state of intended employment.
3. Documentation Requirements for Aliens of Exceptional Ability
We received no comments objecting to the documentation requirements
for aliens of exceptional ability in the sciences or arts. Therefore,
the requirements in the NPRM are incorporated into this final rule.
J. Labor Certification Applications for Sheepherders
We received no comments on the proposed regulations for
sheepherders. The only modification made to the proposed filing
requirements for sheepherders is to require the employer to file only
one form, the ETA Form 9089, rather than two.
K. Basic Process
1. Filing Applications
Employers will be required to file a completed ETA Form 9089
electronically or by mail with a designated ETA application processing
center. Applications filed and certified electronically must, upon
receipt of the labor certification, be signed immediately by the
employer in order to be valid. Applications submitted by mail must
contain the original signature of the employer, alien, attorney, and/or
agent when they are received by the application processing center. DHS
will not process petitions unless they are supported by an original
certified ETA Form 9089 that has been signed by the employer, alien,
attorney and/or agent.
Supporting documentation will not have been filed with the
application, but the employer must provide the required supporting
documentation if its application is selected for audit or if the CO
otherwise requests it.
The Department of Labor may issue or require the use of certain
identifying information, including user identifiers, passwords, or
personal identification numbers (PINS). The purpose of these personal
identifiers is to allow the Department of Labor to associate a given
electronic submission with a single, specific individual. Personal
identifiers can not be issued to a company or business. Rather, a
personal identifier can only be issued to a specific individual. Any
personal identifiers must be used solely by the individual to whom they
are assigned and can not be used or transferred to any other
individual. An individual assigned a personal identifier must take all
reasonable steps to ensure his or her personal identifier can not be
compromised. If an individual assigned a personal identifier suspects,
or becomes aware, that his or her personal identifier has been
compromised or is
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being used by someone else, then the individual must notify the
Department of Labor immediately of the incident and cease the
electronic transmission of any further submissions under that personal
identifier until such time as a new personal identifier is provided.
Any electronic transmissions submitted with a personal identifier will
be presumed to be a submission by the individual assigned that personal
identifier. The Department of Labor's system will notify those making
submissions of these requirements at the time of each submission.
The new system will limit the role of the SWA in the permanent
labor certification process to providing PWDs. In the new system, the
employer will still be required to obtain a PWD from the SWA, although
the timing will change from a post-filing action to a pre-filing
action.
2. Processing
As explained in the section on fraud and abuse above, applications,
at a minimum, will be initially reviewed, on receipt, to verify the
employer exists and has employees on its payroll. Applications will be
checked to make sure the employer is aware of the application being
submitted on its behalf.
3. Filing Date and Refiling of Pending Cases to New System
Commenters addressed the conversion of pending cases to the new
system. Two commenters addressed a potential relationship between the
proposed rule and Section 245(i) of the INA. There were also comments
on how the proposed prevailing wage determination requirement could
affect the filing date. One commenter addressed the issue of whether an
incomplete application should be date-stamped and accepted for
processing.
a. Filing Date
One commenter recommended all applications be date-stamped, instead
of only those accepted for processing.
The NPRM made a distinction between cases denied and cases not
accepted for processing. We have decided there are no practical
differences in the consequences of denying an application compared to
returning an application because it is unacceptable. We have abandoned
the distinction between cases denied and cases not accepted for
processing in the final rule. Under this final rule, incomplete
applications will be denied and not processed.
In the preamble to the NPRM (see 67 FR at 30470), we stated
applications that are not accepted for processing will not be date-
stamped to minimize the administrative burden and to discourage
employers from filing incomplete applications merely to obtain a filing
date. We do not believe it is unreasonable to require the employer to
enter all required information on the application form. Further,
employers could immediately refile any application that is rejected for
processing, so any delay in obtaining a filing date will be minimal and
largely in the employer's control.
(1) Possible Reinstatement of Section 245(i)
Section 245(i) of the INA enables many individuals who qualify for
permanent residency to adjust their status to permanent resident in the
U.S., rather than having to leave the U.S. and apply at a consulate.
One way aliens could qualify for eligibility under Section 245(i) was
to have a labor certification application filed on their behalf by
April 30, 2001, which was the sunset date for Section 245(i).
Commenters were concerned about possible legislation that would
reinstate Section 245(i) and believed the proposed procedures for
conducting pre-filing recruitment would be so time consuming that many
individuals would not be able to file completed applications in time to
meet a new filing deadline.
We can not base our decisions about the design of the labor
certification process on the possibility of legislative action
extending Section 245(i). Moreover, an extension of the Section 245(i)
deadline is not relevant to the determination the Secretary of Labor
must make under Sec. 212(a)(5)(A) of the INA.
(2) Prevailing Wage Determination Requirement
Sections 656.15 through 656.19 of the proposed rule would require
an employer to obtain a PWD from the SWA before filing a labor
certification application. One commenter suggested this could delay
filing the application if there is disagreement about the prevailing
wage. The commenter recommended employers be allowed to submit the
application to DOL before receiving the PWD. Another commenter
recommended the filing date should be established when the PWDR (ETA
Form 9088) is filed with the SWA, rather than when the labor
certification application is filed with DOL. A third commenter noted
information on the PWDR form, such as the job description and special
requirements, also should go to the DHS.
The recommendation to use the date the PWDR is filed with the SWA
as the filing date is not practical under this final rule. As indicated
above, we will have only one form in the streamlined labor
certification system. We have combined the PWDR (ETA Form 9088) with
the Application for Permanent Employment Certification (ETA Form 9089).
Employers will not be submitting a DOL form to the SWAs to obtain a
prevailing wage determination. Instead, employers will make a request
to the SWAs for a PWD, and will receive the wage determination from the
SWA as they do now. This final rule does not require a particular form
for employers to submit requests for wage determinations to SWAs or for
SWAs to use in responding to requests for wage determinations.
Employers will, however, be expected to provide the PWD they received
from the SWAs in the event of an audit or other request from the CO.
Further, we do not believe it prudent to depart from our
longstanding practice of assigning the filing date at the time an
application is accepted. Basing the filing date on the date a request
for a PWD is made with the SWA may lead to program abuses. For example,
such a change could encourage employers to file more wage requests than
needed to obtain an earlier filing date, or encourage employers to file
many applications at the end of the year, before the upcoming year's
Occupational Employment Statistics (OES) wages are released. Also, due
to local variations in the time it takes SWAs to issue wage
determinations, the wage determination would be an inconsistent source
of a filing date.
b. Refiling of Pending Cases in New System
Several commenters expressed concern about the proposed provisions
that would allow employers to withdraw applications for alien
employment certification filed under the current regulations and file
an application for the identical job opportunity under the proposed
rule without loss of the filing date of the original application.
(1) Identical Job Opportunity
One commenter noted because of the proposed elimination of business
necessity, elimination of the use of alternative job requirements, and
disallowance of experience gained with the employer to be used as
qualifying experience, many pending labor certification applications
would not be able to be refiled under the proposed rule with identical
job qualifications
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and salary. This commenter suggested broadening the definition of
identical job opportunity to include a job opportunity by the same
employer (or its successor in interest) for the same alien in the same
field of endeavor, even if the duties, salary, skill level and
educational or experience requirements are not identical. Another
commenter emphasized an applicant should be able to amend, add, or
delete information, such as job duties and requirements, in the new
application. The commenter claimed because the employer must recruit
under the new regulations, the employer should be able to use the SWA's
initial review and make changes.
In determining whether the job opportunity is ``identical'' to the
job opportunity as described in the employer's application filed under
the current regulations, the employer, alien, job title, job location,
and job description must be identical to those in the original
application, including any amendments made in response to an assessment
notice from the SWA under Sec. 656.21(h) of the regulation as it
existed prior to the effective date of this final rule.
We have not broadened the definition of identical job opportunity
as suggested by commenters. As discussed below, this final rule
provides for requirements based on business necessity, alternate
experience requirements, and in certain limited circumstances, to allow
experience gained with the employer to be used as qualifying
experience. See our discussion of job requirements, alternate
experience requirements, and actual minimum requirements below.
(2) Withdrawing and Refiling Cases
One commenter recommended employers not be allowed to withdraw
cases from the current system and refile under the new system if
recruitment of U.S. workers has already begun. The commenter stated DOL
should be consistent with the RIR conversion regulations, which
prohibit employers from converting pending applications to RIR if a job
order has been filed by the SWA. The commenter also warned that U.S.
workers who are willing, qualified, and available would not be referred
when the application converts to the new system.
In establishing a limit on when a pending application may be
refiled in the streamlined system, we reviewed our regulation governing
when cases filed under the current basic process may be converted to
RIR processing. As noted by the commenter, in our final rule regarding
conversion of pending cases to RIR applications, we allowed employers
to request an RIR conversion up to the point the SWA had placed a job
order under Sec. 656.21(f)(1) of the current regulation.
Similarly, the final rule has been revised at Sec. 656.17(d) to
provide that an employer may withdraw an existing application, refile
under this final rule and retain the original filing date up until the
placement of a job order under Sec. 656.21(f)(1) of the current
regulations. As indicated in the preamble to the proposed rule for the
RIR conversion regulations, it would be incongruous to permit
withdrawal and retention of the filing date from an employer who had
already commenced the mandated recruitment. If an employer withdraws an
existing application after a job order has been placed, the employer
may file an application under this final rule for the same job
opportunity; however, the original filing date can not be retained. See
65 FR at 46083 and 66 FR at 40586.
A filing date on a withdrawn application can only be used one time
to support an Application for Permanent Employment Certification filed
under this final rule. Such a refiling must be made within 210 days of
the withdrawal; the 210-day period is intended to allow time for the
employer to conduct the recruitment required by this final rule. If the
refiled application is determined not to be identical to the original
application in accordance with Sec. 656.17(d), the refiled application
will be processed using the new filing date, and the original
application will be treated as withdrawn. If the refiled application
filed under this final rule is denied, the filing date on the withdrawn
application can not be used on another application for permanent
employment certification.
(3) Test of the Labor Market
Several commenters discussed retesting the labor market and re-
recruiting for the refiled application. The commenters addressed the
financial burden of re-recruitment, and backlog reduction.
Three commenters emphasized requiring an employer to undertake
another recruitment campaign to comply with the requirements of the
streamlined labor certification system is unduly burdensome. The
commenters stated it is unfair to require employers to invest more of
their resources for retesting the market solely for the purpose of
using the new system. AILA contended employers should not be required
to expend resources on additional recruitment unless there is a
compelling Governmental interest to support additional recruitment.
Two commenters also asserted an employer should be allowed to
refile a pending application under the new system without having to re-
test the market, if the applicant complied with all the filing and
recruiting requirements under the regulations effective at the time it
filed the application, to alleviate the backlog of cases. The
commenters noted the backlog has prevented many applications that
complied with existing rules from being approved.
We do not believe the requirements for refiling cases are
burdensome. Employers are not required to refile existing cases under
the new system, so if an employer does not wish to incur the expense of
additional recruitment efforts, it need not do so. There is no
guarantee an employer's prior recruitment effort was an adequate test
of the labor market, and additional recruitment would not have been
required under the current regulations. It would be administratively
unwieldy to have multiple standards for reviewing recruitment
information, and would be incompatible with a streamlined system.
We have concluded employers should not obtain the benefits of the
new system if they have not complied with all of its requirements.
(4) Transition to the New System
One commenter requested guidance on how applications being prepared
for filing under the RIR process would be transitioned to the new
system. The commenter requested all labor certification applications
that placed advertisements before the effective date of the final rule
be allowed to proceed under the standards of regulations in effect when
the advertisements were placed, unless the employer elects to proceed
under the new system. Another commenter inquired about the transition
process and schedule that will be followed to implement the proposal.
Specifically, the commenter requested a target implementation date and
clear guidance on the transition of cases to the new system. A third
commenter noted it is unclear how cases filed under the old regulation
will be transitioned. The commenter noted employers will be required to
obtain the Application for Alien Employment Certification (ETA 750),
Part A from the SWA to show documentary proof that the job
opportunities are identical. One commenter suggested, to reduce the
backlog, DOL eliminate the second phrase of proposed Sec.
656.17(c)(3)(i), ``if the employer has complied with all of the filing
and recruiting requirements of the current regulations.'' Another
commenter suggested when an employer converts an application to the new
system, the employer should
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identify whether it has conducted recruitment as a part of the original
application. The commenter recommended the converted application be
selected for an audit if the original recruitment yielded applicants.
The commenter contended DOL should not lose the recruitment information
in an application when it converts to the new system.
AILA suggested employers not be required to obtain a new prevailing
wage, and the employer should be able to use all supporting
documentation submitted with the original application.
As of the effective date of this final rule, all applications for
labor certification must be filed in accordance with this final rule.
While we will continue to process applications filed under the current
regulations, the SWAs will not accept any applications filed under the
current regulations after the effective date of this final rule.
Because this final rule will not become effective until 90 days after
publication in the Federal Register, we believe the 90 day delayed
effective date for this final rule will provide employers, including
those employers contemplating filing RIR applications, with sufficient
time to adjust their recruitment programs to the requirements of the
new system.
In response to commenters' concerns about how proof of filing under
the current regulations will be obtained, the regulation has been
revised to provide, that if requested by the CO under Sec. 656.20, the
employer must send a copy of the original application together with any
amendments to the appropriate ETA application processing center.
Specific instructions for the withdrawing of cases that are to be
refiled under this final rule, will be posted at http://workforcesecurity.doleta.gov/foreign/
.
Employers that have already begun supervised recruitment may not
refile under this final rule and maintain the original application's
filing date. Therefore, the commenter's concern about losing
recruitment information when applications are converted is not an
issue.
If operating experience indicates further guidance on refiling
cases is needed, we will issue to the SWAs and COs a policy directive,
which we will publish in the Federal Register, outlining in further
detail the procedures to be followed in adjudicating such requests.
(5) Priority in Processing Applications
One commenter addressed the priority of applications filed before
this final rule's effective date. The commenter believed we should give
these pending applications priority in processing because a majority of
them would fail to meet the standards contained in the Notice of
Proposed Rulemaking.
AILA suggested we process conversion applications ahead of new
applications to avoid further delays. AILA asserted many employers will
not convert their cases to the new system unless restrictions are
changed or the applicants' cases are ``grandfathered.''
We will process applications, including properly refiled
applications, in the order in which they were filed under this final
rule.
4. Pre-Filing Recruitment Requirements
Under the proposed rule, the employer must recruit during the 6-
month period before filing the application. Recruitment for
professional occupations consists of a job order and two print
advertisements plus three additional steps. Recruitment for
nonprofessional occupations consists of a job order and two print
advertisements. We specifically invited comment on the advertising
requirements, and the different requirements for professional and
nonprofessional occupations.
We received more than 40 comments on the proposed recruitment