[Federal Register Volume 65, Number 166 (Friday, August 25, 2000)]
[Proposed Rules]
[Pages 51777-51779]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-21733]


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DEPARTMENT OF LABOR

Employment and Training Administration

20 CFR Part 656

RIN 1205-AB


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

AGENCY: Employment and Training Administration, Labor.

ACTION: Notice of guidelines.

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SUMMARY: The Employment and Training Administration (ETA) is in the 
process of reengineering the permanent alien labor certification 
process. ETA's goals are to make fundamental changes and refinements 
that will: Streamline the process; save resources; improve the 
effectiveness of the program; and better serve the Department of 
Labor's (Department's) customers. This document will set forth the 
general principles which will guide the development of proposed 
regulations to effectuate the redesign.

FOR FURTHER INFORMATION CONTACT: Dale M. Ziegler, Chief Division of 
Foreign Labor Certifications, Office of Workforce Security, Employment 
and Training Administration, Department of Labor, Room C-4318, 200 
Constitution Avenue, NW., Washington, DC 20210. Telephone: (202) 693-
3010 (this is not a toll-free number).

SUPPLEMENTARY INFORMATION:

A. Permanent Alien Labor Certification Process

    Generally, an individual labor certification from the Department of 
Labor (Department) is required for employers wishing to employ an alien 
on a permanent basis in the U.S. Before the Department of State (DOS) 
and the Immigration and Naturalization Service (INS) may issue visas 
and admit certain immigrant aliens to work permanently in the U.S., the 
Secretary of Labor must first certify to the Secretary of State and the 
Attorney General that:
    (a) There are not sufficient U.S. workers who are able, willing, 
qualified and available at the time of the application for a visa and 
admission into the U.S. and at the place where the alien is to perform 
the work; and
    (b) The employment of such aliens will not adversely affect the 
wages and working conditions of similarly employed U.S. workers. 8 
U.S.C. 1182(a)(5)(A).
    In brief, the current process for obtaining a labor certification 
requires employers to actively recruit U.S. workers in good faith for a 
period of at least thirty days for the job openings for which aliens 
are sought. The employer's job requirements must conform to the 
regulatory standards (e.g., those truly necessary), and employers must 
offer prevailing wages and working conditions for the occupation in the 
area in which the job is located. Further, employers may not favor 
aliens or tailor the job requirements to any particular alien's 
qualifications.
    During the thirty-day recruitment period, employers are required to 
place a three-day help-wanted advertisement in a newspaper of general 
circulation, or a one-day advertisement in a professional, trade, or 
business journal, or in an appropriate ethnic publication. Employers 
are also required to place a thirty-day job order with the local office 
of the state employment service in the state in which the employer 
seeks to employ the alien. Alternatively, if employers believe they 
have already conducted adequate recruitment efforts seeking qualified 
U.S. workers at prevailing wages and working conditions through sources 
normal to the occupation and industry, they may request the Department 
to waive the otherwise mandatory thirty-day recruitment efforts as 
prescribed by the Department's regulations governing the program. This 
waiver process is generally referred to as involving ``Reduction in 
Recruitment'' (RIR) applications. If the employer does not request RIR 
processing or if the request is denied, the help-wanted advertisements 
which are placed in conjunction with the mandatory thirty-day 
recruitment effort direct job applicants to either report in person to 
the employment service office or to submit resumes to the employment 
service.
    Job applicants are either referred directly to the employer or 
their resumes are sent to the employer. The employer then has forty-
five days to report to the employment service the lawful, job-related 
reasons for not hiring any U.S. worker referred. If the employer hires 
a U.S. worker for the job opening, the process stops at that point, 
unless the employer has more than one opening, in which case the 
application may continue to be processed. If, however, the employer 
believes that able, willing and qualified U.S. workers are not 
available to take the job, the application together with the 
documentation of the recruitment results and prevailing wage 
information are sent to one of ten regional offices of the Department. 
There, it is reviewed and a determination is made as to whether or not 
to issue the labor certification based upon the employer's compliance 
with the Department's regulations governing the program. If the 
Department determines that there are no able, willing, qualified and 
available U.S. workers, and that the employment of the alien will not 
adversely affect the wages and working conditions of similarly employed 
U.S. workers, the Department so certifies to the INS and the DOS, by 
issuing a permanent labor certification. See 30 CFR part 656; see also 
section 212(a)(5)(A) of the Immigration and Nationality Act, as amended 
(INA)

B. Problems With the Current System

    The labor certification process described above has been criticized 
as being complicated, costly and time consuming. Due to increases in 
the volume of applications received and a lack of adequate resources, 
it can take up to two years or more to complete the process for 
applications that are filed under the basic process and do not utilize 
the more streamlined RIR

[[Page 51778]]

process. The process also requires substantial state and federal 
resources to administer and is reportedly costly and burdensome to 
employers as well. Cuts in federal funding for both this immigration 
program and for the Employment Service have made it difficult for state 
and federal administrators to keep up with the process. ETA, therefore, 
is taking steps to improve the effectiveness of the various regulatory 
requirements and the application processing procedures, with a view to 
achieving considerable savings in resources both for the government and 
employers, without diminishing significant protections now afforded 
U.S. workers by the current regulatory and administrative requirements.

C. Developing a Streamlined Process

    The permanent foreign labor certification process for employment-
based immigration in the U.S. has been a two-tiered system involving 
both State Employment Security Agencies (SESA) and the U.S. Department 
of Labor for more than 30 years. By its very nature there is an element 
of redundancy in case processing under this system. As previously 
noted, the current system has been criticized for being costly, 
burdensome, and inefficient. The redesigned process envisioned by the 
Department will require employers to submit their applications directly 
to ETA processing centers. The new process will take full advantage of 
state-of-the-art technology and the use of policy-driven standards to 
minimize manual intervention, and to increase the speed of case 
processing at a reduced cost to employers and the government alike. It 
is important to note that the description of the redesigned process in 
this notice represents the Department's current thinking. This process 
may be subject to modifications in response to comments received on 
future rulemaking efforts.
    The new process under consideration for processing permanent 
applications will streamline the role of SESAs in the labor 
certification process to include only the prevailing wage 
determinations. Employers will no longer be required to conduct a 30-
day job recruitment through the Employment Service. In the current 
system, prevailing wage determinations are made by SESAs as part of the 
normal process of reviewing an application and informing the employer 
of any deficiencies therein. In the new process, the employer will 
still be required to obtain a prevailing wage determination from the 
SESA. Although the timing of the prevailing wage determination request 
will change from a post-filing action to a pre-filing action, this step 
is vital in order for the Department to meet its responsibility to make 
the statutorily required certification that the employment of the alien 
will not have an adverse effect on the wages and working conditions of 
similarly employed U.S. workers.
    We envision that the new system for processing permanent alien 
labor certification applications will be considerably streamlined but 
will not materially diminish any of the protections now afforded U.S. 
workers by the current regulatory and administrative requirements. The 
employer will be required to contact the SESA to obtain the prevailing 
wage determination for the occupation in the area of intended 
employment. It is envisioned that this procedure will operate in much 
the same manner as the one currently being utilized for processing 
prevailing wage requests under the H-1B program for nonimmigrant 
professionals in specialty occupations. See 20 CFR part 655, subpart H; 
see also section 212(n) of the INA. As part of our efforts to take 
advantage of technological innovations that will increase efficiencies 
in the program, however, we are proposing that the form upon which such 
a request is made will be standardized and will be machine-readable to 
eliminate the need for data entry by the ETA processing centers when an 
application is first received.
    Upon receipt of a request for a prevailing wage determination under 
the new system, the SESA will 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. If the 
job opportunity is unionized, the wage rate set forth in the collective 
bargaining agreement that applies to the position shall be considered 
to be the applicable prevailing wage. If the job opportunity is not 
unionized, however, as is most often the case, then the SESA will 
determine the occupational classification for the job using an 
appropriate occupational classification taxonomy such as the 
Department's O'Net occupational classification structure. The SESA will 
also then determine the area of intended employment for the job 
opportunity. As a result of this analysis, the SESA will normally 
assign the prevailing wage rate and appropriate skill level for the job 
opportunity from the wage component of the Occupational Employment 
Statistics (OES) survey, unless a wage determination has been issued 
pursuant to the Davis-Bacon Act, 40 U.S.C. 276a et seq. (DBA), or the 
McNamara-O'Hara Service Contract Act, 41 U.S.C. 351 et seq. (SCA), in 
which case that determination shall form the basis for the prevailing 
wage for that job opportunity.
    In the absence of a prevailing wage rate derived from the SCA, the 
DBA, or an applicable wage rate from a collective bargaining agreement 
covering the position, the employer also has the option of submitting 
an alternative source of prevailing wage information such as a 
published wage survey or other wage data obtained from a survey that 
has been conducted or funded by the employer. If the employer chooses 
to submit an alternative source of wage data, the SESA will evaluate 
such other information (e.g., a published wage survey) and will 
determine if it is in compliance with the Department's standards 
governing the acceptability of employer-provided wage data such as the 
validity of the statistical methodology employed. If the employer-
provided wage data is found to be acceptable, the specific wage rate 
derived from that source that applies to the employer's job 
opportunity, taking into consideration such factors as the appropriate 
occupational classification, geographic area, and level of skill, will 
be considered to be the prevailing wage rate for purposes of that 
particular job opportunity. If the employer-provided wage data is not 
accepted, the SESA will inform the employer of the reasons why the 
survey is unacceptable. The Department is contemplating the 
establishment of a process to review employer appeals of determinations 
made by SESAs, such as a determination that an employer-provided wage 
survey is unacceptable.
    The SESA's response to the employer's request will be in writing on 
the same standardized form through which the request was initially 
made. The response will indicate the prevailing wage rate for the job 
opportunity, the source of such information, and the appropriate 
occupational classification and level of skill applied in the 
determination to arrive at that rate.
    The employer will also be required to conduct an adequate test of 
the labor market for qualified U.S. applicants at prevailing wages and 
working conditions through sources normal to the occupation and 
industry during the 6-month period preceding the filing of the 
application. We currently foresee that the recruitment efforts will 
consist of both mandatory steps and alternative steps chosen by the 
employer from a listing of additional recruitment steps that will be 
specifically prescribed by

[[Page 51779]]

the regulations. We intend to outline the specific recruitment steps 
required, including those that will be considered acceptable as 
alternative steps. The required recruiting efforts will be similar to 
the RIR process under the existing system in that all recruitment will 
be conducted prior to the employer filing the application. This up-
front recruitment system will be required of all applicants under the 
new system. Regardless of the steps chosen by the employer to fulfill 
its obligation to conduct an adequate test of the labor market, the 
employer will be required to maintain documentation of the recruitment 
efforts it has undertaken and the results thereof, such as the lawful, 
job-related reasons for not hiring U.S. applicants for the position.
    After the recruitment period has ended and the employer has 
assembled the requisite documentation in support of the application, 
the employer then submits the application directly to an ETA processing 
center. In developing the application form to be used in the new 
system, as with the proposed prevailing wage request form, we intend to 
take every advantage of technological innovations that will increase 
efficiencies in the program. Therefore, it is expected that the labor 
certification application will also be machine-readable or directly 
completed in a web-based environment to eliminate the need for time-
consuming data entry by ETA processing centers. Applications will be 
received by facsimile transmission, by mail, or via internet and will 
be subject to an initial acceptability check to ensure that the 
application can be processed. The purpose of this test is to ensure 
that the form can be recognized by an automatic scanning/data selection 
process. The acceptability test will consist of ensuring that a 
completed application form has been received, including the prevailing 
wage determination form issued by a SESA. Further, this initial test 
will determine whether the application is readable or scannable 
depending on the method of submission. For instance, if the application 
is submitted by mail it will not be acceptable if it is too crumpled, 
stained or damaged to be scanned into the system. The application will 
also be unacceptable if it cannot be read by the computer system due to 
transmission errors on facsimile transmissions or other reasons such as 
illegible writing. As noted above, the Department is also contemplating 
the future use of advanced technologies to allow applications to be 
submitted and processed under a web-based system.
    After an application has been determined to be acceptable for 
filing, a computer system will review it based upon various selection 
criteria or ``flags'' that will allow more problematic applications to 
be identified for an in-depth review or audit. In addition, it is 
anticipated that some applications will be randomly selected for an 
audit without regard to the results of the computer analysis as a 
quality control measure. If no request for an audit has been triggered 
by the information provided on the application nor via random 
selection, the application will be immediately certified and returned 
to the employer, who may then submit the certified application to the 
INS in support of an employment-based I-140 petition. It is anticipated 
that if an application is not selected for an audit, an employer will 
have a computer-generated certification decision within seven to 
twenty-one working days of the date the application was initially 
submitted.
    If an application has been flagged for an audit, the employer will 
be notified and required to submit in a timely manner documentation 
verifying the information stated in or attested to on the application. 
Upon timely receipt of an employer's audit documentation, the scanned 
application would be electronically distributed to an ETA regional 
office where a case analyst would conduct an audit, as determined by 
the regional certifying officer.
    After an audit has been completed, we currently envision three 
potential actions the certifying officer can take on the application: 
Certification; denial; or supervised recruitment. If the audit 
documentation is complete and consistent with the employer's statements 
and attestations contained in the application, the application will be 
certified and returned to the employer. If the audit documentation is 
not complete, is inconsistent with the employer's statements and/or 
attestations contained in the application, or is otherwise deficient in 
some material respect, the application will be denied and a 
notification of denial with the reasons therefor will be issued to the 
employer. We anticipate that if an application is denied by the 
regional certifying officer, the employer will have an opportunity for 
an administrative review of the decision. Lastly, on any application 
selected for an audit regardless of the reason for such selection, the 
regional certifying officer will have the authority to conduct 
supervised recruitment for the employer's job opportunity in any case 
where serious questions arise regarding the adequacy of the employer's 
test of the labor market.
    Where supervised recruitment is required by the regional certifying 
officer, we expect that the procedure will operate much like the 
current non-RIR regulatory recruitment scheme under the basic process, 
except that the recruitment efforts would be directed by the regional 
certifying officer and would not be directed by the SESA, as is the 
case under the current system. See Sec. 656.24(g) for detailed 
information concerning the recruitment efforts required under the 
existing basic alien labor certification process. At the completion of 
the supervised recruitment efforts, the employer will be required to 
document that such efforts were unsuccessful, including the lawful, 
job-related reasons for not hiring any U.S. workers who applied for the 
position. After a review of the employer's documentation, the regional 
certifying officer will either certify or deny the application. In all 
instances in which an application is denied, the denial notification 
will set forth the deficiencies upon which the denial is based.
    Upon the implementation of the new system outlined in this document 
and subject to public comment in future rulemaking, the Department 
believes that a number of key criticisms of the current program, such 
as its cost, timeliness, and complexity, will have been resolved or 
mitigated to the extent practicable. The Department is continuing to 
monitor operating procedures at all levels to determine whether further 
efficiencies can be made that would improve the balance between meeting 
employers' legitimate needs for foreign workers with our obligation to 
both protect jobs for U.S. workers and protect against adverse effects 
on the U.S. labor force.

    Signed at Washington, DC, this 17th day of August, 2000.
Ray Bramucci,
Assistant Secretary for Employment and Training.
[FR Doc. 00-21733 Filed 8-24-00; 8:45 am]
BILLING CODE 4510-30-M