[Federal Register Volume 64, Number 85 (Tuesday, May 4, 1999)]
[Notices]
[Pages 23984-23986]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-11131]
[[Page 23983]]
_______________________________________________________________________
Part V
Department of Labor
_______________________________________________________________________
Employment and Training Administration
_______________________________________________________________________
Measures for Increasing Efficiency in the Permanent Labor
Certification Program; Notice
Federal Register / Vol. 64, No. 85 / Tuesday, May 4, 1999 / Notices
[[Page 23984]]
DEPARTMENT OF LABOR
Employment and Training Administration
[General Administrative Letter No. 1-97, Change 1]
Measures for Increasing Efficiency In the Permanent Labor
Certification Program
AGENCY: Employment and Training Administration, Labor.
ACTION: Notice.
-----------------------------------------------------------------------
SUMMARY: The Employment and Training Administration is publishing for
public comment General Administrative Letter (GAL) No. 1-97, Change 1,
Subject: Measures for Increasing Efficiency in the Permanent Labor
Certification Process, which it issued as a result of the settlement
agreement reached in Lauretta V. Herman (No. 98-56061, (9th Cir. March
5, 1999)). GAL 1-97 was originally issued on October 1, 1996. GAL 1-97,
Change 1, published below differs from the October 1, 1996, issuance
primarily in that the efficiency measure of having unduly restrictive
job requirements adjudicated prior to allowing advertisements to be
published has been removed.
DATES: Interested persons are invited to submit written comments on GAL
1-97, Change 1 on or before July 6, 1999.
ADDRESSES: Submit written comments to the Assistant Secretary for
Employment and Training, U.S. Department of Labor, 200 Constitution
Avenue, NW. Room N-4456, Washington, DC 20210, Attention: John R.
Beverly, III, Director, U.S. Employment Service.
FOR FURTHER INFORMATION CONTACT: Mr. Denis Gruskin, Senior Specialist,
Division of Foreign Labor Certifications, Employment and Training
Administration. 200 Constitution Avenue NW., Room N-4456, Washington,
DC 20210. Telephone (202) 219-4369 (this is not a toll-free number).
(Authority: 8 U.S.C. 1182(a)(5)(A); 29 U.S.C. et seq.; section 122,
Pub. L. 101-649, 109 Stat. 4978.)
Signed at Washington, DC, this 24 day of April, 1999.
John R. Beverly III,
Director, Employment Service.
Directive: General Administrative Letter No. 1-97, Change 1.
To: All Regional Administrators
From: David Henson, Director, Office of Regional Management.
Subject: Measures for Increasing Efficiency in the Permanent Labor
Certification Process.
1. Purpose. To modify previously provided procedural guidance for
increasing efficiency in the permanent labor certification process
under current regulations in order to handle increasing workloads with
declining staff resources.
2. References. 20 CFR Part 656, Technical Assistance guide (TAG)
No. 656 Labor Certifications, and General Administration Letter (GAL)
No. 15-95.
3. Background. GAL 1-97 was originally issued in October 1996. The
goal of GAL 1-97 was to increase efficiency in the permanent labor
certification process. To accomplish this goal, the GAL promulgated
several measures which were intended to allow speedier, more efficient
processing of permanent cases within current regulations. In the more
than two years of experience under GAL 1-97 the evidence indicates
that, in general, the measures put forth in the GAL have been
effective. In the past two years, in spite of declining staff, the
States and Regional Offices have completed action on more cases than in
past years when more staff were available. However, as a result of the
settlement agreement in Lauretta V. Herman, March 5, 1999, the
efficiency measure of having unduly restrictive job requirements
adjudicated prior to allowing advertisements to be published is being
removed. This change to GAL 1-97 is to remove that requirement and
reemphasize the other measures stated in that GAL.
This GAL should be interpreted in a manner consistent with the
labor certification provisions of the Immigration and Nationality Act,
Department of Labor regulations promulgated thereunder, and Board of
Alien Labor Certification Appeals (BALCA) case law. No Notice of
Findings (NOF) shall be issued and no labor certification denied based
solely upon this GAL, as this GAL is not intended to substantively
change the Department's regulations or BALCA case law for the
adjudication of applications for labor certification.
4. Action Required. Administrators are requested to:
A. Provide the attached policy and procedural guidance to
appropriate staff.
B. Instruct alien labor certification staff to implement the
measures for increasing efficiency and follow the procedures in
processing permanent labor certification applications.
C. Apply these procedures to applications when processing begins on
or after the effective date of this GAL.
5. Inquiries. Direct questions to the appropriate Regional
Certifying Officer.
6. Attachment. Increasing Efficiency in the Permanent Labor
Certification Process.
Expiration Date: June 30, 2001.
Increasing Efficiency in the Permanent Labor Certification Process
A. Introduction
In order to increase efficiency, the measures below shall be
implemented under current regulations at 20 CFR 656 by Regions and
State Employment Security Agencies (SESAs) on May 1, 1999. These
measures are designed to significantly reduce U.S. worker referrals on
jobs where their background and experience indicate they are not fully
qualified for the job's stated requirements, to reduce SESA and
Regional Office backlogs, and to allow Regions and SESAs to handle
increasing workloads in a timely manner with fewer staff.
To promote consistency among Regions and SESAs, operating
procedures have been provided for handling applications involving
unduly restrictive job requirements, reduction in recruitment, and
limited review processing. Depending on local situations, other
efficiency measures may be implemented by the Regional Certifying
Officer.
B. Measures to Increase Efficiency
1. Unduly Restrictive Job Requirements
As stated in the regulations and Technical Assistance Guide, the
job opportunity's requirements shall be those normally required for the
job in the United States, unless adequately documented as arising from
business necessity. Normal requirements for the occupation in which the
job opportunity is included may be found in the Dictionary of
Occupational Titles.
2. Reduction in Recruitment Requests (RIRs)
Regions and SESAs will encourage reduction in recruitment requests
on applications:
--For occupations for which there is little or no availability;
--Which have no restrictive requirements;
--Which meet prevailing wage; and
--For which the employer can show adequate recruitment through sources
normal to the occupation and industry within the previous 6 months
RIR requests will be given expedited processing by SESAs and
Regional Offices.
[[Page 23985]]
3. Notice of Findings (NOF) Extensions
After issuing a NOF, Certifying Officers will grant only one
extension of time beyond the initial 35 days in which the employer can
file a rebuttal. The extension may be granted up to 35 days. Further
extensions will not be granted.
4. Harmless Error
Certifying Officers will have the discretion to excuse a harmless
error on the part of the employer to fully comply with the regulations
if the Certifying Officer determines that the labor market was
sufficiently tested to warrant a finding that qualified U.S. workers
are not available for the job opportunity and employment of the alien
will not adversely affect wages and working conditions of U.S. workers
similarly employed. A finding of harmless error will be made by the
Certifying Officer on a case-by-case basis and shall not set a
precedent for another case.
5. Limited Review Processing
Certifying Officers may work with their SESAs to set up a system to
identify and flag applications that are ready for transmittal to the
Region and apparently have no processing problems. Such applications
may not have special job requirements, unusual job duties, applicant
availability, or wage issues. Based on the recommendation of the SESA,
such cases will generally be approved as they are received in the
Region with minimal review. For quality control purposes, a small
number of cases in various occupations will be randomly selected for a
more extensive review.
6. Resume Screening
SESA staff shall screen resumes of U.S. workers against the
employer's job requirements regardless of whether or not they are
considered by the SESA to be unduly restrictive. Only those resumes of
fully qualified applicants, based on the employer's final stated
requirements, shall be sent to the employer and to the Regional Office.
Recruitment on the job order will cease when it is forwarded to the
Regional Office. Late resumes may be sent to employers having similar
job offers or returned to applicants. After the labor certification has
been issued, resumes will be discarded. Regions shall retain resumes of
qualified applicants when a NOF or Final Determination has been issued.
7. Standardized Recruitment
When the Certifying Officer requires the employer, through an NOF,
to recruit again because of deficiencies in the first recruitment, the
employer shall be instructed to place a 1-day Sunday advertisement in
an appropriate newspaper of general circulation. The ad must run in
conjunction with a 10-day job order placed with the SESA. This reduced
level of recruitment may not be used by employers who have never
recruited for the position, or when the Certifying Officer has
determined that a trade or professional journal is the most appropriate
advertising medium.
8. Advertisements
Because the SESA will not have sufficient time to review a draft ad
once a job order has been placed, SESAs are only required to assist in
drafting the text or reviewing a draft ad for accuracy if the ad is
submitted with an initial or resubmitted application.
9. Applicant Questionnaires
Because of budgetary constraints at the SESAs and Regional Offices,
SESAs should no longer send questionnaires to U.S. workers who were
interviewed as the result of the labor certification process.
C. Operating Procedures
1. Unduly Restrictive Job Requirements
a. The SESA will review each permanent labor certification
application to consider whether there may be any unduly restrictive
requirements.
b. The SESA will notify the employer of any potential unduly
restrictive requirements and request the employer to either remove
those requirement(s) or provide a business necessity justification for
the requirement(s) in question within 45 days of the date of the
request. If complete information is not received within 45 days, the
application will be returned to the employer. If it is refiled, it will
be treated as a new application with the original date of receipt
deleted and replaced with the refiling date.
c. The SESA will also request, as part of the business necessity
documentation, that the employer provide documentation to show that the
job existed and was previously filled at the same requirements before
the alien was hired. The employer may submit documentation including
but not limited to position descriptions, organizational charts and
payroll records, etc. Jobs which did not exist before the alien was
hired will be considered jobs that are not truly open to U.S. workers,
unless the employer can clearly demonstrate that a major change in the
business operation caused the position to be created after the alien
was hired.
d. After the employer responds to the State's request for further
information regarding the requirements for the job opportunity, the
State will then proceed to complete the processing of the application,
including the necessary advertisement(s) and SESArch of the SESA
applicant files.
2. Reduction in Recruitment Requests (RIRs)
a. An employer may file a reduction in recruitment request for any
occupation, except those listed on Schedule B, if the employer can show
that an adequate test of the labor market has occurred at prevailing
wages and working conditions through sources normal to the occupation
and industry within the previous 6 months.
b. SESAs and Certifying Officers will encourage requests for
reduction in recruitment in occupations with little or no availability
and in circumstances as determined by individual Certifying Officers.
c. Upon receiving an employer's written request for a reduction in
recruitment, the SESA shall review the application for completeness and
determine the appropriate prevailing wage.
d. The SESA shall return the application to the employer for
correction and/or additional information if there are deficiencies in
the application, such as an inadequate wage offer or restrictive job
requirements.
e. When there are deficiencies in the application that would have
affected the recruitment, the SESA should advise the employer that it
is unlikely that the Certifying Officer will approve an RIR and suggest
that the employer recruit through the regular process. However, the
SESA may not discourage the use of RIR nor refuse to transmit a written
request for an RIR to the Certifying Officer.
f. When transmitting the RIR to the Certifying Officer, the SESA
should include a recommendation, based on its knowledge of the labor
market, for or against granting the request.
g. The RIR will be given expedited processing at the Region if it
contains no deficiencies. Those with deficiencies identified by the
SESA shall be processed in the order that they are received along with
other applications.
h. Among the factors to be considered by the Certifying Officer in
making determinations on RIRs pursuant to section 20 CFR 656.24 are the
following:
Adequacy of the recruitment conducted by the employer
applicant, e.g., newspaper advertising, job fairs, internet.
[[Page 23986]]
Documentation of normal recruitment practices in the
industry and occupation furnished by the employer.
Availability of U.S. workers for the occupation
involved in the employer's application for which recruitment has
been conducted through the SESA in the past, as shown by ES
referrals to job orders.
SESA recommendations/comments.
Certifying Officer's knowledge of the local labor
market.
If RIR is denied because the recruitment is not acceptable, the
application shall be returned to the SESA for regular processing in the
order in which it is received along with other applications.
i. If the RIR request contains deficiencies, such as inadequate
wage offer or restrictive job requirements, the Certifying Officer
shall issue an NOF denying the RIR and citing the deficiencies.
3. Limited Review Processing
a. At his or her discretion, the Certifying Officer, may establish
a process for making expedited determinations on applications based on
the recommendations of the SESA. Such SESA recommendations must be in
accordance with guidelines established in advance by the Certifying
Officer.
b. Limited review processing shall apply to applications which
offer the prevailing wage, have no special requirements or job duties,
do not exceed the Specific Vocational Preparation level assigned to the
job, and have no applicant availability or a few applicants who clearly
do not meet the job's requirements.
c. Applications may be designated for limited review processing
only after completion of recruitment. The SESA will assemble an
application package for regional processing as follows and affix a
limited review code (``LR'') to the file:
One copy of the ETA 7147--State Agency Transmittal.
One copy of the G-28--Notice of Appearance of Attorney.
Two sets of the ETA 750, Parts A & B, Application for
Alien Employment Certification and one backup copy of Part B.
One copy of correspondence and other documentation.
One copy of the SESA Job Order.
One copy of the Internal Job Posting.
One copy of all three Advertisements.
One copy of the Recruitment Results.
One copy of the Resumes.
d. For the most part, applications which meet the limited review
criteria will be expedited for approval when they are received in the
Regional Office. Some applications will be randomly selected for review
for quality control and SESA training purposes.
[FR Doc. 99-11131 Filed 5-3-99; 8:45 am]
BILLING CODE 4510-30-P