[Federal Register Volume 65, Number 144 (Wednesday, July 26, 2000)]
[Proposed Rules]
[Pages 46082-46084]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-18865]



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Part IV





Department of Labor





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Employment and Training Administration



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20 CFR Part 656



Labor Certification Process for the Permanent Employment of Aliens in 
the United States; Refiling of Applications; Proposed Rule

  Federal Register / Vol. 65, No. 144 / Wednesday, July 26, 2000 / 
Proposed Rules  

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DEPARTMENT OF LABOR

Employment and Training Administration

20 CFR Part 656

RIN 1205-AB25


Labor Certification Process for the Permanent Employment of 
Aliens in the United States; Refiling of Applications

AGENCY: Employment and Training Administration, Labor.

ACTION: Proposed rule; request for comments.

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SUMMARY: The Employment and Training Administration (ETA) of the 
Department of Labor (Department or DOL) proposes to amend its 
regulations relating to the permanent employment of aliens in the 
United States. The proposed amendments would permit employers to 
request that any labor certification application for permanent 
employment filed on or before July 26, 2000, and which has not been 
sent to the regional certifying officer, be processed as a reduction in 
recruitment request, provided recruitment has not been conducted 
pursuant to the permanent labor certification regulations. ETA 
anticipates that the proposed amendment would reduce the backlog of 
labor certification applications for permanent employment in State 
Employment Security Agencies (SESA). This measure to reduce backlogs 
would result in a variety of desirable benefits, a reduction in 
processing time for both new applications and those applications 
currently in the queue, would facilitate the development and 
implementation of a new, more efficient system for processing labor 
certification applications for permanent employment in the United 
States, and would reduce government resources necessary to process 
applications for alien employment certification.

DATES: Interested persons are invited to submit written comments on the 
proposed rule on or before August 25, 2000.

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: James H. 
Norris, Chief, Division of Foreign Labor Certifications.

FOR FURTHER INFORMATION CONTACT: Denis M. Gruskin, Senior Specialist, 
Division of Foreign Labor Certifications, Employment and Training 
Administration, 200 Constitution Avenue, NW., Room N-4456, Washington, 
DC 20210. Telephone: (202) 219-5263 (this is not a toll-free number).

SUPPLEMENTARY INFORMATION:

A. Background

    Backlogs of applications for permanent alien employment 
certification have been a growing problem in ETA regional and SESA 
offices. These increasing backlogs have resulted in an increase in the 
time it takes to obtain a determination on an application for permanent 
employment in the United States.
    Recent measures to reduce backlogs in ETA's regional offices have 
met with considerable success. Consequently, ETA is now turning its 
attention to reducing the number of backlogged cases in SESA's. 
Instituting measures to reduce backlogs in SESA's without first 
reducing backlogs in regional offices would not have resulted in a 
reduction in mean processing time. Implementing measures to reduce 
backlogs in SESA's without first reducing backlogs in the regional 
offices, would have merely resulted in transferring the backlogged 
applications from the SESA's to ETA's regional offices.

B. Statutory Standard and Implementing Regulations

    Before the Immigration and Naturalization Service (INS) may approve 
petition requests and the Department of State may issue visas and admit 
certain immigrant aliens to work permanently in the United States, the 
Secretary of Labor must first certify to the Secretary of State and to 
the Attorney General that:
    (a) There are not sufficient United States workers, who are able, 
willing, qualified, and available at the time of the application for a 
visa and admission into the United States and at the place where the 
alien is to perform the work; and
    (b) The employment of the alien will not adversely affect the wages 
and working conditions of similarly employed United States workers. [8 
U.S.C. 1182(a)(5)(A)].
    If the Secretary, through ETA, determines that there are no able, 
willing, qualified, and available U.S. workers and that employment of 
the alien will not adversely affect the wages and working conditions of 
similarly employed U.S. workers, DOL so certifies to the INS and to the 
Department of State, by issuing a permanent alien labor certification.
    If DOL cannot make one or both of the above findings, the 
application for permanent alien employment certification is denied. DOL 
may be unable to make the two required findings for one or more 
reasons, including, but not limited to:
    (a) The employer has not adequately recruited U.S. workers for the 
job offered to the alien, or has not followed the proper procedural 
steps in 20 CFR part 656.
    (b) The employer has not met its burden of proof under section 291 
of the Immigration and Nationality Act (INA or Act.) (8 U.S.C. 1361), 
that is, the employer has not submitted sufficient evidence of its 
attempts to obtain available U.S. workers, and/or the employer has not 
submitted sufficient evidence that the wages and working conditions 
which the employer is offering will not adversely affect the wages and 
working conditions of similarly employed U.S. workers.

C. Department of Labor Regulations

    The Department of Labor has promulgated regulations, at 20 CFR part 
656, governing the labor certification process described above for the 
permanent employment of immigrant aliens in the United States. Part 656 
was promulgated pursuant to section 212(a)(14) of the INA (now at 
section 212(a)(5)(A)). 8 U.S.C. 1182(a)(5)(A).
    The regulations at 20 CFR part 656 set forth the factfinding 
process designed to develop information sufficient to support the 
granting of a permanent labor certification. These regulations describe 
the nationwide system of public employment service offices available to 
assist employers in finding available U.S. workers and how the 
factfinding process is utilized by DOL as the basis of information for 
the certification determination. See also 20 CFR parts 651 through 658, 
and the Wagner-Peyser Act (29 U.S.C. Chapter 4B).
    Part 656 also sets forth the responsibilities of employers who 
desire to employ immigrant aliens permanently in the United States. 
Such employers are required to demonstrate that they have attempted to 
recruit U.S. workers through advertising, through the Federal-State 
Employment Service System, and by other specified means. The purpose is 
to assure that there is an adequate test of the availability of U.S. 
workers to perform the work, and to ensure that aliens are not employed 
under conditions that would adversely affect the wages and working 
conditions of similarly employed U.S. workers.

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D. Backlogs

    Since Fiscal Year (FY) 1995, backlogs of applications for permanent 
alien employment certification in ETA regional offices and SESA's have 
increased dramatically. Between October 1994 and October 1998, the 
total backlog in both regional and SESA offices increased from 40,000 
to 104,000 applications for alien employment certification. Regional 
office backlogs alone increased from 10,000 to 30,000 cases over that 
period, while backlogs in the SESA offices increased from 30,000 to 
74,000 cases. The number of backlogged cases in SESA's on March 31, 
1999, stood at about 86,000 applications.
    Early in calendar year 1999 ETA instituted a number of measures to 
reduce the backlog of applications for permanent alien employment 
certification that numbered over 38,000 cases in its regional offices. 
The most important of these measures put in place in February 1999, 
were:
     Implementation of a system nationally which allowed 
employers to transmit H-1B labor condition applications (LCA) 
electronically and to receive a certification decision on their 
applications by return fax. Implementation of this system allowed many 
of the regional staff that it had been necessary to assign to 
processing LCA's in order to ensure compliance with the statutory 7-day 
H-1B processing requirement, to be reassigned to processing permanent 
cases.
     Implementation of a special priority backlog reduction 
effort by providing $500,000 for overtime and hiring temporary staff. 
These additional funds allowed experienced analysts to concentrate on 
processing permanent cases.
    The efforts to reduce backlogs in regional offices met with 
considerable success. As of late October 1999, the number of backlogged 
cases in ETA regional offices numbered 14,642. To accomplish this large 
reduction in backlogs, regional offices processed over 71,000 cases. In 
addition to processing backlogged applications, the regions had to keep 
abreast of the 47,800 new cases received from the SESA's between the 
beginning of February and late October 1999.

E. Reduction in Recruitment (RIR) Requests

    On October 1, 1996, because of the increasing workloads, ETA issued 
General Administrative Letter No. 1-97, Measures for Increasing 
Efficiency in the Permanent Labor Certification Process (GAL 1-97). The 
GAL instituted a number of measures to increase efficiency which were 
achievable under current regulations. One of the measures to increase 
efficiency was to encourage employers to file requests for reduction in 
recruitment under Sec. 656.21(i) of the permanent labor certification 
regulations. Requests for reduction in recruitment are given expedited 
processing at ETA's regional offices, if they contain no deficiencies. 
The reduction in recruitment provision allows certifying officers to 
reduce partially or completely the employer's recruitment efforts 
through the State Employment Security Agencies, for example, by 
decreasing partially or completely the number of days which the job 
order and/or ad must be run. The notice requirement at 
Sec. 656.20(g)(1)(i) and (5) can be reduced partially, but it cannot be 
eliminated, since it is based on a statutory requirement. See 
Immigration Act of 1990, Public Law 101-649, sec. 122(b) (Nov. 29 
1990).
    The reduction in recruitment provision may be utilized by 
certifying officers when the labor market has been adequately tested 
within 6 months prior to the filing of the application and there is no 
expectation that full or partial compliance with the prescribed 
recruitment measures will produce qualified and willing applicants.
    The emphasis on the use of the reduction in recruitment regulation 
by GAL 1-97 in appropriate cases has worked well and has contributed 
significantly to ETA being able to manage its increasing case load with 
limited staff resources. Backlogs in both the regional offices and 
SESA's would undoubtedly be substantially larger if the use of the RIR 
provisions in the regulations had not been encouraged by GAL 1-97.
    ETA has concluded that backlogs in SESA's could be substantially 
reduced if employers are allowed to have applications that were not 
originally filed as RIR cases and which meet the appropriate criteria 
removed from the SESA's processing queues and processed as reduction in 
recruitment cases. Furthermore, reducing or eliminating the backlogs 
would facilitate the development and implementation of a new permanent 
employment certification system that ETA has been developing.
    The proposed amendment to the RIR regulation at 20 CFR 656.21(i) 
would allow an employer to file a request to have an application filed 
on or before July 26, 2000, which has not been sent to the regional 
office, processed as a RIR request under Sec. 656.21(i), provided that 
recruitment has not been conducted pursuant to Secs. 656.21(f) and/or 
(g). Since the RIR procedure is designed to expedite processing by 
permitting employers to substitute recruiting conducted prior to filing 
the application for the recruitment required by Sec. 656.21, it would 
be incongruous to entertain an RIR request from an employer who had 
already engaged in the mandated recruiting. Those applications should 
be approved or denied based on that recruitment.
    The proposed regulation provides that the option to have a 
permanent labor certification application processed as an RIR request 
would apply only to cases that were filed on or before July 26, 2000. 
ETA's operating experience indicates that without such a limitation 
employers may be motivated to file large numbers of cases, many of 
which may be inadequately prepared, simply to obtain a filing date \1\ 
and then convert such cases to reduction in recruitment requests. 
Providing sufficient lead time to employers that may file large numbers 
of cases that could subsequently be converted to RIR cases would 
undermine the purpose of the proposed rule which is to reduce backlogs 
of existing cases and to facilitate the orderly implementation of a new 
streamlined labor certification system.
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    \1\ The filing date is important to employers because, according 
to INS regulations, ``[t]he priority date of any petition for 
classification under section 203(b) of the Act which is accompanied 
by an individual labor certification from the Department of Labor 
shall be the date the request for certification was accepted for 
processing by any office within the employment service system.'' See 
8 CFR 204.5(d).
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    Before the issuance of GAL 1-97, cited above, on October 1, 1996, 
the RIR provisions at Sec. 656.21(i) were not fully utilized for a 
variety of reasons. The issuance of GAL 1-97 instituted a uniform 
policy that RIR requests were to be viewed favorably, set forth 
operating guidelines that were to be followed by all regional offices, 
and clarified ETA policy regarding the priority to be given RIR 
requests. Between the issuance of GAL 1-97 in October 1996, and the 
publication of this document in the Federal Register employers have had 
ample encouragement and opportunity to file RIR requests.
    The proposed regulation also provides that for the request to have 
a previously filed application processed as an RIR request it must be 
accompanied by documentary evidence of good faith recruitment conducted 
within the 6 months immediately preceding the date of the request. This 
provision will allow expeditious processing of previously filed 
applications as RIR requests upon receipt of the employer's request.

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    The proposed regulation does not specifically address the ability 
of an employer to amend its application at the time the employer makes 
a request to have a previously filed application processed as a RIR 
request. The Department believes that the current administrative 
practices that have been developed to handle requests to amend labor 
certifications after filing are sufficient. Interested parties, 
however, are invited to submit comments on this issue and the 
Department will consider those and any other comments in the 
development of the final rule.

Executive Order 12866

    The Department has determined that this proposed rule is not an 
``economically significant regulatory action'' within the meaning of 
Executive Order 12866, in that it will not have an economic effect on 
the economy of $100 million or more or adversely affect in a material 
way the economy, a sector of the economy, productivity, competition, 
jobs, the environment, public health or safety, or State, local or 
tribal governments or communities.
    While it is not economically significant, the Office of Management 
and Budget reviewed the proposed rule because of the novel legal and 
policy issues raised by this rulemaking.

Regulatory Flexibility Act

    The proposed rule would only affect those employers seeking 
immigrant workers for permanent employment in the United States. The 
Department of Labor has notified the Chief Counsel for Advocacy, Small 
Business Administration, and made the certification pursuant to the 
Regulatory Flexibility Act at 5 U.S.C. 605(b), that the proposed rule 
will not have a significant economic impact on a substantial number of 
small entities.

Unfunded Mandates Reform Act of 1995

    This rule will not result in the expenditure by State, local and 
tribal governments, in the aggregate, or by the private sector, of $100 
million or more in any 1 year, and it will not significantly or 
uniquely affect small governments. Therefore, no actions are deemed 
necessary under the provisions of the Unfunded Mandates Reform Act of 
1995.

Small Business Regulatory Enforcement Fairness Act of 1996

    This rule is not a major rule as defined by section 804 of the 
Small Business Regulatory Enforcement Act of 1996. It will not result 
in an annual effect on the economy of $100 million or more; a major 
increase in costs or prices; or significant adverse effects on 
competition, employment, investment, productivity, innovation, or on 
the ability of United States-based companies to compete with foreign-
based companies in domestic and export markets.

Executive Order 13132

    This proposed rule will not have a substantial direct effect on the 
States, on the relationship between the National Government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government. Therefore, in accordance with Executive 
Order 13132, it is determined that this rule does not have sufficient 
federalism implications to warrant the preparation of a summary impact 
statement.

Assessment of Federal Regulations and Policies on Families

    The proposed regulation does not affect family well-being.

Paperwork Reduction Act

    The proposed rule would not modify the existing collection of 
information requirements in 20 CFR 656.21.

Catalogue of Federal Domestic Assistance Number

    This program is listed in the Catalogue of Federal Domestic 
Assistance at Number 17.203, ``Certification for Immigrant Workers.''

List of Subjects in 20 CFR Part 656

    Administrative practice and procedure, Aliens, Crewmembers, 
Employment, Employment and training, Enforcement, Fraud, Guam, 
Immigration, Labor, Longshore work, Unemployment, Wages and working 
conditions.

    Accordingly, Part 656 of Chapter V of Title 20 of the Code of 
Federal Regulations is proposed to be amended as follows:

PART 656--LABOR CERTIFICATION PROCESS FOR PERMANENT EMPLOYMENT OF 
ALIENS IN THE UNITED STATES

    1. The authority citation for Part 656 is revised to read as 
follows:

    Authority: 8 U.S.C. 1182(a)(5)(A) and 1182(p); 29 U.S.C. 49 et 
seq.; sec.122, Pub. L. 101-649, 109 Stat. 4978.


Sec. 656.21  [Amended]

    2. Section 656.21 is amended by adding a new paragraph (i)(6), to 
read as follows:


Sec. 656.21  Basic labor certification process.

* * * * *
    (i) * * *
    (6) Notwithstanding the provisions of paragraph (i)(1)(i) of this 
section an employer may file a request with the SESA to have any 
application filed on or before July 26, 2000, and which has not been 
sent to the regional certifying officer, processed as a reduction in 
recruitment request under this paragraph (i), provided that recruitment 
has not been conducted pursuant to paragraph (f) and/or (g) of this 
section.

    Signed at Washington, DC, this 19th day of July, 2000.
Raymond L. Bramucci,
Assistant Secretary of Labor for Employment and Training.
[FR Doc. 00-18865 Filed 7-25-00; 8:45 am]
BILLING CODE 4510-30-P