[Federal Register Volume 67, Number 87 (Monday, May 6, 2002)]
[Proposed Rules]
[Pages 30466-30521]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-10570]



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Part V





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; Proposed Rule

  Federal Register / Vol. 67, No. 87 / Monday, May 6, 2002 / Proposed 
Rules  

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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

AGENCIES: Wage and Hour Division, Employment Standards Administration, 
and Employment and Training Administration, Labor.

ACTION: Proposed rule; request for comments.

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SUMMARY: The Department of Labor is proposing to amend its regulations 
governing the filing and processing of labor certification applications 
for the permanent employment of aliens in the United States to 
implement a new system for filing and processing such applications. The 
proposed rule would also amend the regulations governing the employer's 
wage obligation under the H-1B program. The new system would require 
employers to conduct recruitment before filing their applications 
directly with an ETA application processing center on application forms 
designed for automated screening and processing. State Workforce 
Agencies (SWA's) would provide prevailing wage determinations to 
employers. Employers would be required to place a job order with the 
SWA which would be processed the same as any other job order placed by 
employers. SWA's would no longer be the intake point for submission of 
applications and would not be involved in processing the applications 
as they are now in the present system. The combination of prefiling 
recruitment, automated processing of applications, and elimination of 
the role of the SWA's in the processing of applications will yield a 
large reduction in the average time needed to process labor 
certification applications and are expected to eliminate the need to 
periodically institute special, resource intensive efforts to reduce 
backlogs which have been a recurring problem.

DATES: Interested persons are invited to submit written comments on the 
proposed rule on or before July 5, 2002.

ADDRESSES: Submit written comments to the Assistant Secretary for 
Employment and Training, U.S. Department of Labor, 200 Constitution 
Avenue, NW., Room C-4318, Washington, DC 20210, Attention: Dale 
Ziegler, Chief, Division of Foreign Labor Certifications.

FOR FURTHER INFORMATION CONTACT: Denis M. Gruskin, Senior Specialist, 
Division of Foreign Labor Certifications, Employment and Training 
Administration, 200 Constitution Avenue, NW., Room C-4318, Washington, 
DC 20210. Telephone: (202) 693-2953 (this is not a toll free number).

SUPPLEMENTARY INFORMATION:

I. Background

    The process for obtaining a permanent labor certification has been 
criticized as being complicated, time consuming and requiring the 
expenditure of considerable resources by employers, SWA's and the 
Federal Government. It can take up to two years or more to complete the 
process for applications that are filed under the basic process and do 
not utilize the more streamlined reduction in recruitment (RIR) 
process. The reduction in recruitment process allows employers that 
request RIR processing to conduct recruitment before filing their 
applications and these applications are evaluated on the basis of such 
recruitment.
    The redesigned system we envision would require employers to 
conduct recruitment before filing their applications. Employers would 
be required to conduct both mandatory and alternative recruitment 
steps. The alternative steps would be chosen by the employer from a 
list of additional recruitment steps in the regulations. The employer 
would not be required to submit any documentation with its application, 
but would be expected to have assembled supporting documentation 
specified in the regulations and would be required to provide it in the 
event its application is selected for audit.
    Employers would be required to submit their applications on forms 
designed for automated processing to minimize manual intervention to an 
ETA application processing center for automated screening and 
processing. After an application has been determined to be acceptable 
for filing, an automated system would review it based upon various 
selection criteria that would allow applications to be identified for 
potential audits before determinations could be made. In addition, some 
applications would be randomly selected as a quality control measure 
for an audit without regard to the results of the computer analysis.
    A complete application would consist of two forms. An Application 
for Permanent Labor Certification form (ETA Form 9089) and a Prevailing 
Wage Determination Request (PWDR) form (ETA Form 9088). The application 
form would require the employer to respond to 56 items. The majority of 
the items on the application form would consist of attestations which 
would require the employer to do no more than check ``yes'', ``no'', or 
``NA'' (not applicable) as a response. These attestations and other 
information required by the application form elicit information similar 
to that required by the current labor certification process. For 
example, the employer will have to attest to, such items as: whether 
the employer provided notice of the application to the bargaining 
representative or its employees; whether the alien beneficiary gained 
any of the qualifying experience with the employer; whether the alien 
is currently employed by the employer; whether a foreign language 
requirement is required to perform the job duties; and whether the U.S. 
applicants were rejected solely for lawful job related reasons. (The 
term ``applicant'' is defined at Sec. 656.3 as an U.S. worker who is 
applying for a job opportunity for which an employer has filed an 
Application for Permanent Labor Certification (ETA Form 9089). The term 
``U.S. Worker'' is also defined at Sec. 656.3.) The wage offered on the 
application form would be required to be to equal to or greater than 
the prevailing wage determination entered by the SWA on the PWDR form 
described below. Comments are requested on ETA forms 9088 and 9089 
which are published at the end of this NPRM.
    The application form, however, would not require the employer to 
provide a job description, or detailed job requirements. The job 
description and job requirements would be entered on the PWDR form, 
which the employer would be required to submit to the SWA for a 
prevailing wage determination. The SWA would enter its prevailing wage 
determination on the form and return it to the employer with its 
endorsement. The employer would be required to submit both forms to an 
ETA servicing office for processing and a determination.
    The employer would not be required to provide any supporting 
documentation with its application but would be required to furnish 
supporting documentation to support the attestations and other 
information provided on the form if the application was selected for an 
audit. The standards used in adjudicating applications under the new 
system would be substantially the same as those used in arriving at a 
determination in the current system.

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The determination would still be based on: whether the employer has met 
the requirements of the regulations; whether there are insufficient 
workers who are able, willing, qualified and available; and whether the 
employment of the alien will have an adverse effect on the wages and 
working conditions of U.S. workers similarly employed.
    SWA's would no longer be the intake point for submission of 
applications for permanent alien employment certification and would not 
be required to be the source of recruitment and referral of U.S. 
workers as they are in the present system. The required role of SWA's 
in the redesigned permanent labor certification process would be 
limited to providing prevailing wage determinations (PWD). Employers 
would be required to submit a PWDR form to SWA's to obtain a PWD before 
filing their applications with an ETA application processing center. 
The SWA's would, as they do under the current process, evaluate the 
particulars of the employer's job offer, such as the job duties and 
requirements for the position and the geographic area in which the job 
is located, to arrive at a PWD.
    The combination of prefiling recruitment, automated processing of 
applications, and elimination of the SWA's' required role in the 
recruitment and referral of U.S. workers would yield a large reduction 
in the average time needed to process labor certification applications 
and would also eliminate the need to institute special, resource 
intensive efforts to reduce backlogs which have been a recurring 
problem.
    The proposed labor certification application and PWDR have been 
designed to be machine readable or directly completed in a web-based 
environment. Initially, depending upon whether or not a processing fee 
is implemented, applications will be on forms which can be submitted by 
facsimile transmission or by mail and will be subject to an initial 
acceptability check to determine whether the application can be 
processed. If a fee for processing the application is required, all 
applications will have to be submitted by mail. (However, as indicated 
in section IV.E, of the preamble below, the Department cannot 
promulgate and implement a fee charging rule until Congress passes the 
necessary authorizing legislation.) In the long-term, ETA will be 
exploring the possibility of further automating the process so that 
applications and PWDR's may be submitted electronically to an 
application processing center whether or not a fee is required to be 
submitted with an application.
    After an application, including the PWDR, has been determined to be 
acceptable for filing, a computer system will review the application 
based upon various selection criteria that will allow more problematic 
applications to be identified for audit. Additionally, we anticipate 
that some applications will be randomly selected for an audit without 
regard to the results of the computer analysis as a quality control 
measure. If an audit has not been triggered by the information provided 
on the application or because of a random selection, the application 
will be certified and returned to the employer. The employer may then 
submit the certified application to the Immigration and Naturalization 
Service (INS) in support of an employment-based I-140 petition. We 
anticipate that if an application is not selected for an audit, an 
employer will have a computer-generated decision within 21 calendar 
days of the date the application was initially filed.
    If an application is selected for an audit, the employer will be 
notified and required to submit, in a timely manner, documentation 
specified in the regulations to verify the information stated in or 
attested to on the application. Upon timely receipt of an employer's 
audit documentation, the application will be distributed to the 
appropriate ETA regional office where it will be reviewed by the 
regional Certifying Officer.
    After an audit has been completed, the proposed rule provides that 
the Certifying Officer can certify the application; deny the 
application; or order supervised recruitment. If the audit 
documentation is complete and consistent with the employer's statements 
and attestations contained in the application, the application will be 
certified and returned to the employer. If the audit documentation is 
incomplete, is inconsistent with the employer's statements and/or 
attestations contained in the application, or if the application is 
otherwise deficient in some material respect, the application will be 
denied and a notification of denial with the reasons therefor will be 
issued to the employer. If an application is denied, the employer will 
be able to request review of the Certifying Officer's decision by the 
Board of Alien Labor Certification Appeals (Board or BALCA). 
Additionally, on any application selected for an audit, the regional 
Certifying Officer will have the authority to request additional 
information before making a final determination or order supervised 
recruitment for the employer's job opportunity in any case where 
questions arise regarding the adequacy of the employer's test of the 
labor market.
    The supervised recruitment that may be required by the regional 
Certifying Officer, is similar to the current non-RIR regulatory 
recruitment scheme under the current basic process which requires 
placement of an advertisement in conjunction with a 30-day job order by 
the employer. The recruitment, however, will be supervised by ETA 
regional offices instead of the SWA's. At the completion of the 
supervised recruitment efforts, the employer will be required to 
document in a recruitment report that such efforts were unsuccessful, 
including the lawful, job-related reasons for not hiring any U.S. 
workers who applied for the position. After a review of the employer's 
documentation, the regional Certifying Officer will either certify or 
deny the application. In all instances in which an application is 
denied, the denial notification will set forth the deficiencies upon 
which the denial is based. The employer would be able to seek 
administrative-judicial review of a denial.

II. Statutory Standard

    Before the Immigration and Naturalization Service (INS) may approve 
petition requests and the Department of State may issue visas and admit 
certain immigrant aliens to work permanently in the United States, the 
Secretary of Labor must first certify to the Secretary of State and to 
the Attorney General that:
    (a) There are not sufficient United States workers who are able, 
willing, qualified, and available at the time of the application for a 
visa and admission into the United States and at the place where the 
alien is to perform the work; and
    (b) The employment of the alien will not adversely affect the wages 
and working conditions of similarly employed United States workers. (8 
U.S.C. 1182(a)(5)(A)).
    If the Secretary, through ETA, determines that there are no able, 
willing, qualified, and available U.S. workers and that employment of 
the alien will not adversely affect the wages and working conditions of 
similarly employed U.S. workers, DOL so certifies to the INS and to the 
Department of State, by issuing a permanent alien labor certification.
    If DOL cannot make one or both of the above findings, the 
application for permanent alien employment certification is denied. DOL 
may be unable to make the two required

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findings for one or more reasons, including:
    (a) The employer has not adequately recruited U.S. workers for the 
job offered to the alien, or has not followed the proper procedural 
steps in 20 CFR part 656.
    (b) The employer has not met its burden of proof under section 291 
of the Immigration and Nationality Act (INA or Act.) (8 U.S.C. 1361), 
that is, the employer has not submitted sufficient evidence of its 
attempts to obtain available U.S. workers, and/or the employer has not 
submitted sufficient evidence that the wages and working conditions 
which the employer is offering will not adversely affect the wages and 
working conditions of similarly employed U.S. workers.

III. Current Department of Labor Regulations

    The Department of Labor has promulgated regulations, at 20 CFR part 
656, governing the labor certification process for the permanent 
employment of immigrant aliens in the United States. Part 656 was 
promulgated under section 212(a)(14) of the INA (now at section 
212(a)(5)(A)). 8 U.S.C. 1182(a)(5)(A).
    The regulations at 20 CFR part 656 set forth the factfinding 
process designed to develop information sufficient to support the 
granting or denial of a permanent labor certification. These 
regulations describe the nationwide system of public State Workforce 
Agency offices available to assist employers in finding available U.S. 
workers and how the factfinding process is utilized by DOL as the basis 
of information for the certification determination. See also 20 CFR 
parts 651 through 658, and the Wagner-Peyser Act (29 U.S.C. Chapter 
4B).
    Part 656 also sets forth the responsibilities of employers who 
desire to employ immigrant aliens permanently in the United States. 
Such employers are required to demonstrate that they have attempted to 
recruit U.S. workers through advertising, through the Federal-State 
Employment Service/One-Stop System, and by other specified means. The 
purpose of the recruitment process is to assure that there is an 
adequate test of the availability of U.S. workers to perform the work 
and to ensure that aliens are not employed under conditions that would 
adversely affect the wages and working conditions of similarly employed 
U.S. workers.
    In brief, the current process for obtaining a labor certification 
requires employers to actively recruit U.S. workers in good faith for a 
period of at least 30 days for the job openings for which aliens are 
sought. The employer's job requirements must conform to the regulatory 
standards (e.g., those normally required for the job), and employers 
must offer prevailing wages and working conditions for the occupation 
in the area in which the job is located. Further, employers may not 
favor aliens or tailor the job requirements to any particular alien's 
qualifications.
    During the 30-day recruitment period, employers are required to 
place a three-day help-wanted advertisement in a newspaper of general 
circulation, or a one-day advertisement in a professional, trade, or 
business journal, or in an appropriate ethnic publication. Employers 
are also required to place a 30-day job order with the local office of 
the State Workforce Agency in the state in which the employer seeks to 
employ the alien. Alternatively, if employers believe they have already 
conducted adequate recruitment efforts seeking qualified U.S. workers 
at prevailing wages and working conditions through sources normal to 
the occupation and industry, they may request a waiver of the otherwise 
mandatory 30-day recruitment efforts. This waiver process is generally 
referred to as involving ``Reduction in Recruitment'' applications. If 
the employer does not request RIR processing or if the request is 
denied, the help-wanted advertisements which are placed in conjunction 
with the mandatory thirty-day recruitment effort direct job applicants 
to either report in person to the State Workforce Agency office or to 
submit resumes to the State Workforce Agency.
    Job applicants are either referred directly to the employer or 
their resumes are sent to the employer. The employer then has 45 days 
to report to the State Workforce Agency the lawful, job-related reasons 
for not hiring any U.S. worker referred. If the employer hires a U.S. 
worker for the job opening, the process stops at that point, unless the 
employer has more than one opening, in which case the application may 
continue to be processed. If, however, the employer believes that able, 
willing and qualified U.S. workers are not available to take the job, 
the application, together with the documentation of the recruitment 
results and prevailing wage information, are sent to one of the 
Department's regional offices. There, it is reviewed and a 
determination is made as to whether or not to issue the labor 
certification based upon the employer's compliance with the regulations 
governing the program. If the Department of Labor determines that there 
are no able, willing, qualified and available U.S. workers, and that 
the employment of the alien will not adversely affect the wages and 
working conditions of similarly employed U.S. workers, we so certify to 
the INS and the DOS, by issuing a permanent labor certification. See 20 
CFR part 656; see also section 212(a)(5)(A) of the Immigration and 
Nationality Act, as amended (INA).

IV. Discussion of Regulatory Amendments

A. Definitions

    We have made several changes to the definitions of the terms used 
in part 656. With the exception of the change of the definition of the 
term ``employer,'' substantive changes in definitions are discussed 
along with substantive changes in the relevant regulatory provisions.
    The definition of employer would be amended to reflect the 
longstanding policy articulated in Technical Assistance Guide No. 656 
Labor Certifications, issued in 1981 that:
     Persons who are temporarily in the United States, such as 
foreign diplomats, intracompany transferees, students, exchange 
visitors, and representatives of foreign information media cannot be 
employers for the purpose of obtaining a labor certification for 
permanent employment; and
     Job opportunities consisting solely of job duties that 
will be performed totally outside the United States, its territories or 
possessions cannot be the subject of a permanent application for alien 
employment certification.

B. Schedule A

1. General
    Schedule A is a list of occupations for which DOL has precertified 
job opportunities, having made determinations that qualified U.S. 
workers are not able, willing, and available, and that alien employment 
will not adversely affect the wages and working conditions of similarly 
employed U.S. workers. See 20 CFR 656.10 and 656.22. Certification 
applications are filed with INS or the Department of State, and those 
agencies determine whether an individual application has been 
precertified by DOL.
2. Professional Nurses
    We have conformed the general description of aliens seeking 
Schedule A labor certification as professional nurses at 
Sec. 656.5(a)(1) (currently Sec. 656.10(a)(2)) to the procedures at 
Sec. 656.15(c)(2)

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(currently Sec. 656.22(c)(2)) to indicate that only a permanent license 
can be used to satisfy the alternative requirement to passing the 
Commission on Graduates of Foreign Nursing Schools exam that the alien 
hold a full and unrestricted license to practice professional nursing 
in the State of intended employment. INS has informed us that it has 
received applications with temporary licenses or permits filed as 
supporting documentation to Schedule A applications. Our intent in 
promulgating the current Schedule A procedures for professional nurses 
was to put an end to the pre-1981 practice whereby some nurses entered 
the United States on temporary licenses and permits, but failed to pass 
State examinations for a permanent license. As we have stated with 
respect to this issue, ``it is not in the public interest to grant 
certification to nurses who will not be able to practice their 
profession or who will likely limit or otherwise adversely affect the 
wages or job opportunities for U.S. workers in lower-skilled jobs.'' 45 
FR 83926, 83927 (December 19, 1980); see also 20 CFR 656.22(c)(2) 
(1991).
    To be consistent with the description of the other occupational 
groups on Schedule A, the definition of professional nurse would be 
moved from the section containing the definitions, at Sec. 656.3 in the 
current rule, to the section providing a general description of 
Schedule A, at Sec. 656.5 in the proposed rule.
3. Aliens of Exceptional Ability In the Performing Arts
    The amendments would remove aliens of exceptional ability in the 
performing arts from the special handling procedures and include them 
on Schedule A as a separate category. The employer or the alien will 
have to submit to INS the documentation currently required by 20 CFR 
656.21a(a)(1)(iv)(A)(1) through (a)(1)(iv)(A)(6) of the current 
regulations. Current recruitment requirements consisting of an 
advertisement or a statement from the union, if customarily used as a 
recruitment source in the area or industry, will no longer be required. 
As a practical matter, under 20 CFR 656.21a, once we determined that an 
alien was of exceptional ability in the performing arts, certification 
was issued in virtually all such cases. INS can make this determination 
as readily as DOL. Such determinations are similar to determinations 
Immigration Officers make for aliens of exceptional ability in the 
sciences and arts under Group II of Schedule A. In both cases a 
determination has to be made whether or not the alien's work during the 
past year and intended work in the United States will require 
exceptional ability.
    Aliens of exceptional ability in the sciences or arts comprise 
Group II of Schedule A. We have delegated the determination whether an 
alien beneficiary of a labor certification application qualifies for 
Schedule A to the Immigration and Naturalization Service (INS). 
Schedule A applications are filed with the INS; not with the Department 
of Labor. The current and proposed regulations provide that the 
Schedule A determination of the INS shall be conclusive and final. 
Therefore the employer may not make use of the administrative review 
procedures in Part 656. The INS, however, in the process of making its 
Schedule A determination may request an advisory opinion as to whether 
an alien is qualified for the Schedule A occupation from the Division 
of Foreign Labor Certifications.
    We have also concluded, based on the small number of applications 
submitted on behalf of aliens of exceptional ability in the performing 
arts and experience in evaluating the required recruitment reports 
submitted in conjunction with such applications, that there are few 
performing artists, whether alien beneficiaries or U.S. workers, who 
can satisfy the standards to qualify as an alien of exceptional ability 
in the performing arts as defined in the regulations. Consequently, the 
admission of the few aliens who may qualify as aliens of exceptional 
ability in the performing arts will not have an adverse effect on the 
wages and working conditions of U.S. performing artists.

C. Schedule B

    Schedule B is a list of occupations for which we determined that 
U.S. workers are generally able, willing, qualified and available, and 
that the wages and working conditions of United States workers 
similarly employed will generally be adversely affected by the 
employment of aliens in the United States in such occupations. (See 20 
CFR 656.11(a) and 23(a) and (b)). The current regulations require that 
a waiver must be obtained to receive certification of Schedule B jobs. 
A request for a waiver must be filed along with the application to 
obtain a certification for an occupation listed on Schedule B.
    We propose to eliminate Schedule B, because program experience 
indicates that it has not contributed any measurable protection to U.S. 
workers. Once an employer files a Schedule B waiver, the application is 
processed the same as any other application processed under the non-
RIR, basic process. Whether or not an application for a Schedule B 
occupation is certified is dependent on the results of the basic labor 
market test detailed in Sec. 656.21 of the current regulations.

D. General Instructions

1. Expansion of Posting Requirement
    The posting regulation at Sec. 656.10(d)(ii) in the proposed rule 
has been expanded to require in addition to a posting a notice of the 
Application for Permanent Labor Certification (ETA Form 9089), that the 
employer must publish the posting in any and all in-house media, 
whether electronic or printed, in accordance with the normal procedures 
generally used in recruiting for other positions in the employer's 
organization. Employers must also be prepared to provide documentation 
of the posting requirements in the event of an audit.
2. Ability to Pay and Place the Alien on the Payroll
    The current regulations and Application for Alien Employment 
Certification form (ETA 750) require that the employer document that it 
``has enough funds available to pay the wage or salary offered the 
alien'', and that ``(t)he employer will be able to place the alien on 
the payroll on or before the date of the alien's proposed entrance into 
the United States''. We propose to eliminate these provisions from the 
regulations and the Application for Alien Employment Certification 
form, since our examination of these issues is a duplication of the 
examination of the employer's financial standing and the ability to 
place the alien on the payroll undertaken by the INS when it processes 
the employer's petition. Moreover, these provisions are also 
unnecessary because the underlying issues could still be addressed 
because we are proposing to retain the provision in the current 
regulations that ``(t)he job opportunity has been and is clearly open 
to any qualified U.S. worker.'' If the employer is not in a position to 
pay the alien and/or place him or her on the payroll, it is not 
offering a job opportunity that is clearly open to U.S. workers.

E. Fees

    The Appendix to the FY 2001 Budget of the United States states that 
``(l)egislation will be proposed that would authorize the Secretary of 
Labor to collect fees from employers for the certification of certain 
aliens as eligible workers under the Immigration and Nationality Act.'' 
Although specific legislation has not been proposed to

[[Page 30470]]

implement the fee charging language in the President's budget, the 
proposed rule contains a provision outlining how fee charging would be 
implemented if it becomes law. If this occurs, the final rule would 
require employers to submit a fee with their applications. A charge of 
$30.00 would be imposed if a check in payment of the fee is not honored 
by the financial institution on which it is drawn. The existence of any 
outstanding ``insufficient funds'' checks would be grounds for 
returning applications for alien employment certification to the 
employer as unacceptable for processing. Receipt of any ``insufficient 
funds'' checks while the application is being processed would be 
grounds for denying the application. Receipt of any ``insufficient 
funds'' checks after an application has been certified would be grounds 
for revoking the certification. If an application is returned to the 
employer because it was incomplete, the employer would be able to 
request a refund of the fee or resubmit the application.
    Fees would also be required for Schedule A and Sheepherder 
applications which are submitted to INS for adjudication.
    If legislation authorizing the Secretary of Labor to collect fees 
from employers for the certification of immigrant workers is not passed 
by the time a Final Rule is to be published, the proposed fee 
provisions will not be included in the Final Rule.

F. Applications for Labor Certification for Schedule A Occupations

1. PWDR Required to File Schedule A Applications With INS
    Employers would be required to submit the required processing fee, 
a completed PWDR endorsed by the SWA, and a completed Application for 
Alien Employment Certification form to the appropriate INS office. The 
current Application for Alien Employment Certification form (ETA 750) 
requires employers to enter the offered rate of pay and to certify that 
the wage offered equals or exceeds the prevailing wage. Since the 
application form no longer contains the offered wage, employers would 
be required to submit a completed and endorsed PWDR as well as the 
application form in Schedule A cases to the appropriate INS office.
2. Aliens of Exceptional Ability in the Performing Arts
    As explained above, the proposed rule would remove aliens of 
exceptional ability in the performing arts from the special handling 
procedures and include them on Schedule A and the documentation 
currently required by 20 CFR 656.21a(a)(1)(iv)(A)(1) through 
(a)(1)(iv)(A)(6) of the regulations would be required to be submitted 
to INS by the employer or the alien beneficiary.

G. Labor Certification Applications for Sheepherders

    Procedures for filing applications for Sheepherders in the current 
regulations are in the special handling procedures at Sec. 656.21(a). 
The new system does not contain a section on special handling 
procedures, since we will handle all applications submitted to the 
Department in the same way. Sheepherder applications will continue to 
be submitted to INS along with the required processing fee. Employers 
would have to submit to the appropriate INS officer in addition to the 
processing fee:
     A completed Application for Alien Employment Certification 
form;
     A completed PWDR endorsed by the SWA; and
     A signed letter or letters from all U.S. employers who 
have employed the alien as a sheepherder during the immediately 
preceding 36 months, attesting that the alien has been employed in the 
United States lawfully and continuously as a sheepherder, for at least 
33 of the immediately preceding 36 months.
    Employers that cannot not meet the requirements to file their 
applications for sheepherders with INS will be able to file their 
applications under the revised basic process described below.

H. Basic Process

1. Filing Applications
    Employers would be required to file a completed Application for 
Alien Employment Certification form and a PWDR endorsed by the SWA with 
a designated ETA application processing center. Supporting 
documentation that may be requested by the Certifying Officer in an 
audit letter would not be filed with the application, but the employer 
would be expected to be able to provide required supporting 
documentation if its application were selected for audit.
    The new system would limit the role of the SWA in the permanent 
labor certification process to providing PWD's. Prevailing wage 
determinations are currently made by SWA's after the application has 
been filed as part of the normal process of reviewing an application 
and informing the employer of deficiencies therein. In the new process, 
the employer would still be required to obtain a PWD from the SWA, 
although the timing would change from a post-filing action to a pre-
filing action.
    Under the proposed regulations, before filing a permanent 
application with an ETA application processing center, the employer 
would submit a PWDR to the SWA. (The ``machine readable'' PWDR would 
also be used to submit prevailing wage requests for the H-1B and H-2B 
programs.) The SWA would issue a PWD on the PWDR form and return it to 
the employer. The fully executed PWDR form would become part of the new 
application form filed at an ETA application processing center.

2. Processing

    Computers would do an initial analysis of the information provided 
on the ``machine readable'' application form. Applications that could 
not be accepted for processing because certain information that was 
requested by the application form was not provided will be returned to 
the employer. Applications accepted for processing would be screened 
and would be certified, denied or selected for audit.
    Information on the form may trigger a denial of the application or 
a request for an audit by Federal regional office staff. The 
application may also be selected for audit on a random basis as a 
quality control measure. If an application is not denied or selected 
for audit we anticipate that the application will be certified and 
returned to the employer within 21 days.
    If the application is selected for audit, we will send the employer 
a letter with instructions to furnish required documentation supporting 
the information provided on the application form within 21 calendar 
days of the date of the request. If the requested information is not 
received in a timely fashion, the application will be denied.
3. Filing Date
    Applications accepted for processing will be date stamped. 
Applications which are not accepted for processing and returned to 
employer will not be date stamped to minimize the administrative 
burden, and to discourage employers from filing an application merely 
to obtain a filing date, which under the regulations of the INS and 
Department of State becomes the priority date for processing petitions 
and visa applications, respectively.
    Employers will be able to withdraw applications for alien 
employment certification filed under the current regulations and file 
an application for the identical job opportunity involved in the 
withdrawn application under the proposed rule without loss of the 
filing date.

[[Page 30471]]

4. Required Prefiling Recruitment
    a. Professional occupations.
    Exclusively for the purpose of the permanent labor certification 
program, the proposed rule defines a professional occupation as an 
occupation for which the attainment of a bachelor's or higher degree is 
a usual requirement for the occupation. Employers would be required to 
adequately test the labor market at prevailing wages and working 
conditions during the 6-month period preceding the filing of the 
application. The recruitment steps consist of prescribed mandatory and 
alternative steps and are designed to reflect what we believe, based on 
our program experience, are the recruitment methods that are most 
appropriate to the occupation. The mandatory steps for professional 
occupations consist of:
     Placement of a job order with the SWA serving the area of 
intended employment;
     Placement of two advertisements in the Sunday edition of 
the newspaper of general circulation most appropriate to the occupation 
and the workers likely to apply for the job opportunity in the area of 
intended employment; and
     Placement of an advertisement in an appropriate journal in 
lieu of one Sunday advertisement if the position involves experience 
and an advanced degree.
    Under the current system, the employer may advertise, when a 
newspaper of general circulation is designated as the appropriate 
advertising medium, in any newspaper of general circulation. However, 
our experience has shown that some employers routinely place newspaper 
advertisements in those newspapers with the lowest circulation and that 
these publications are often the least likely to be read by qualified 
U.S. workers. Therefore, in order for the employer's job opening to 
receive appropriate exposure, the proposed regulation requires that the 
mandatory advertisements appear in the newspaper of general circulation 
most appropriate to the occupation and the workers most likely to apply 
for the job opportunity in the area of intended employment. For 
example, in a relatively large metropolitan area such as Philadelphia, 
Pennsylvania or Washington, DC, it would not be appropriate to place an 
advertisement for a computer professional in a suburban newspaper of 
general circulation since workers interested in professional jobs 
consult the metropolitan newspapers in the area of intended employment 
with the largest circulation rather than the suburban newspapers of 
general circulation. On the other hand, it would be appropriate to 
advertise in a suburban newspaper of general circulation for 
nonprofessional occupations, such as jewelers, houseworkers or drivers.
    If the position involves experience and an advanced degree, the 
proposed regulation requires that the employer place one advertisement 
in an appropriate professional journal in lieu of one Sunday 
advertisement. To assure that employers make a current and complete 
test of the labor market, the mandatory recruitment steps must be 
conducted at least 30 days, but no more than 180 days, before the 
application is filed. In addition, the mandatory advertisements must be 
placed at least 28 days apart.
    The employer, as indicated above, would also be required to select 
three additional pre-filing recruitment steps from among commonly used 
professional recruitment channels, such as job fairs, job search web 
sites and private employment agencies. Unlike the mandatory steps, one 
of the additional recruitment steps may consist solely of activity that 
takes place within 30 days of the filing of the application.
    We are publishing in Appendix A to the preamble a list of 
occupations for which a bachelor's or higher degree is a usual 
requirement. The basic list was developed by the Bureau of Labor 
Statistics (BLS) and was based on its analyses of occupations' usual 
education and training requirements conducted to produce the 
Occupational Outlook Handbook. The Employment and Training 
Administration developed a crosswalk to the O*NET, Standard 
Occupational Classification (SOC) codes. The occupational titles, along 
with the relevant O*Net-SOC codes and codes which indicate whether the 
usual degree requirement for the occupation is for a professional 
degree, doctoral degree, master's degree, work experience plus a 
bachelor's or higher degree, or a bachelor's degree, are presented in 
the list we are publishing in Appendix A. We do not plan to codify 
Appendix A. Additional information about the occupations, including 
their definitions, can be obtained from O*Net online at http://online.onetcenter.org. Commenters are invited to submit comments on the 
appropriateness of the occupations included on the list published in 
Appendix A.
b. Nonprofessional Occupations
    The proposed rule defines a non-professional occupation as any 
occupation for which the attainment of a bachelor's or higher degree is 
not a usual requirement for the occupation. Recruitment for occupations 
that normally do not require a baccalaureate or higher degree, i.e., 
non-professional occupations, consists of three mandatory steps: two 
newspaper advertisements and placement of a job order with the SWA 
serving the area of intended employment. All three recruitment steps 
must occur at least 30 days but no more than 180 days, before filing 
the application. Like recruitment for professional occupations, the 
advertisements must be placed at least 28 days apart, and must run in 
the Sunday edition of the newspaper of general circulation most 
appropriate to the occupation and the workers likely to apply for the 
job opportunity.
    The advertising requirements for both professional and 
nonprofessional occupations are more extensive than under the current 
regulations. The difference in advertising requirements between 
professional and nonprofessional occupations is based on the 
Department's experience as to how employers advertise for these two 
broad categories of workers. The Department is interested in receiving 
comments on the more extensive advertising requirements, and the 
different advertising requirements for professional and nonprofessional 
occupations.
5. Newspaper Advertising Requirements
    The proposed requirements for the newspaper advertisements are 
modeled after current regulatory requirements at 20 CFR 656.21(g), 
except the advertisement must: (1) identify the employer; (2) direct 
potential job seekers to the employer and not the SWA; and (3) provide 
a description of the job and its geographical location that is 
sufficiently detailed to fully inform U.S. workers of the particular 
job opportunity. Additionally, the wage must equal or exceed the 
prevailing wage entered on the PWDR by the SWA. Any job requirements 
listed in the advertisement may not exceed those listed on the PWDR.
6. Recruitment Report
    The employer will be required to maintain documentation of the 
recruitment efforts it has undertaken and the results thereof, 
including the lawful job-related reasons for rejecting U.S. workers who 
applied for the job. Recruitment reports may be required in the cases 
selected for audit and are required in every case in which employers 
conduct supervised recruitment. Under the current regulations, 
employers have always had

[[Page 30472]]

to report on the lawful job-related reasons why each U.S. worker 
applying for the job or referred to the employer was not hired. See 20 
CFR 656.21(b)(6) in the current regulations. The proposed regulation 
provides that the employer must prepare a summary report describing the 
recruitment steps taken and the results, including the number of U.S. 
applicants, the number of job openings in the job opportunity, the 
number of applicants hired and, if applicable, the number of U.S. 
workers rejected summarized by the lawful job reasons for such 
rejections. The Certifying Officer, however, after reviewing the 
employer's recruitment report may request the resumes or applications 
of the U.S. workers who were rejected sorted by the reasons for 
rejection provided by the employer in its recruitment report.
    The proposed rule governing the content of recruitment reports, 
required for recruitment conducted prior to filing the application by 
the employer or for supervised recruitment that may be required by the 
Certifying Officer, would also clarify our position regarding 
``qualified'' U.S. workers. We have added the requirements currently 
found at Sec. 656.24(b)(2)(ii) to the requirements for the recruitment 
reports required to be submitted by employers on the results of their 
prefiling and supervised recruitment of U.S. workers. The recruitment 
requirements thus provide that a U.S. worker may be qualified for the 
employer's job opportunity even if he/she does not meet every one of 
the employer's job requirements. The U.S. worker who, by education, 
training, experience, or a combination thereof, qualifies by being able 
to perform, in the normally accepted manner, the duties involved in the 
occupation may not be rejected for failing to meet a specific job 
requirement. In addition, the U.S. worker is considered qualified, if 
he/she can acquire during a reasonable period of on-the-job-training, 
the skills necessary to perform as customarily performed by other U.S. 
workers similarly employed, the duties involved in the occupation.
7. Job Requirements
a. Business Necessity Standard and Job Duties
    The requirement that the employer's job requirements must be those 
normally required for jobs in the United States would be retained in 
the new system. Employers, however, would not be able to justify job 
requirements that exceed those that are normal by use of business 
necessity. The business necessity standard, currently at 20 CFR 
656.21(b), often works to the disadvantage of U.S. workers. This 
regulation has been difficult to administer and has generated a greater 
amount of litigation than any other regulatory provision in the current 
regulations. Since the position for which certification is sought is 
usually held by an alien worker who is the beneficiary of the 
application, job requirements tend to be manipulated to favor the 
selection of the alien. The existing business necessity standard 
requires the CO to evaluate the unique standards of an employer's 
business. In highly technical areas this is an extremely difficult 
undertaking and may be subject to employer manipulation since we are in 
no position to second guess the employer in such circumstances.
    We have concluded that any business necessity standard that may be 
adopted would present similar problems. Therefore, the proposed rule 
would not retain a business necessity standard as a justification for 
employer's job requirements that exceed requirements that are normal to 
jobs in the United States. However, as discussed below, the case law 
relating to how the business necessity standard relates to a language 
requirement is being adopted. Further, any requirements other than 
those relating to the number of months or years of experience in the 
occupation or the number of months or years of education or training in 
the occupation cannot be specified as a job requirement, unless 
justified in the limited circumstances discussed below.
    Accordingly, the proposed rule provides that the job opportunity's 
requirements cannot exceed the Specific Vocational Preparation level 
assigned to the occupation as shown in the O*Net Job Zones, except in 
certain limited circumstances, as explained below.
b. Other Job Requirements
    Job requirements other than those relating to the number of months 
or years of experience in the occupation or the number of months or 
years of training cannot be used unless justified in certain limited 
circumstances, discussed below.
(1) Previous Employment of U.S. Workers
    Other requirements can be justified if the employer employed a U.S. 
worker to perform the job opportunity with the duties and requirements 
specified in the application within 2 years of filing the application. 
ETA's operating experience indicates that the more recently a job 
existed and was filled by a U.S. worker before the time an application 
is filed, the more likely it is to involve a job that is clearly open 
to U.S. workers. In the event of an audit, the proposed rule provides 
that previous employment of a U.S. worker in an occupation with 
requirements other than those relating to experience, education and/or 
training can be documented by furnishing the name of the former 
employee, and an appropriate combination of the following: job 
description, resume, payroll records, letter from previous employee and 
previous recruitment documentation.
(2) Other Requirements Are Normal to the Occupation
    Requirements other than those relating to amount of experience and 
education could be justified if the requirements were normal to the 
occupation in order for a person to perform the basic job duties and 
were routinely required by other employers in the industry. The 
proposed rule provides that employers can document such requirements by 
providing copies of state and/or local laws, regulations, ordinances; 
articles; help-wanted advertisements; or employer surveys. Acceptable 
examples, depending on the occupation, include but are not limited to, 
professional trade or business licenses, licensing standards, specified 
typing speed, and the ability to lift a minimum number of pounds.
(3) Foreign Language Requirement
    Preventing employers from artificially tailoring job opportunities 
to fit the unique skills of the incumbent alien has always been a major 
issue is the labor certification process. Since 1977, we have addressed 
this through the use of the ``business necessity'' test. For reasons 
already discussed, we are not utilizing business necessity in the new 
system. However, with respect to language requirements, which are often 
used by employers seeking to artificially restrict the job to the 
incumbent alien, the use of the business necessity standard produced a 
well-understood and, generally, well-accepted body of law about when 
and how language requirements can be utilized. The proposed rule 
incorporates that legal standard.
    Consistent with the majority of BALCA decisions, the proposed rule 
would require that a foreign language requirement cannot be included 
merely for the convenience of the employer or because it is a mere 
preference of the employer, co-workers or customers. Although the 
proposed rule would eliminate any business necessity standard as a 
means of justifying a

[[Page 30473]]

foreign language requirement, the rule would incorporate the existing 
standards and criteria developed under BALCA case law. Therefore, a 
foreign language can be based on the nature of the occupation; e.g., 
translator, or, for example, the existence of the need to communicate 
with a large majority of the employer's customers or regular 
contractors who cannot communicate effectively in English. This can be 
documented by the employer furnishing the number and proportion of its 
clients contractors who cannot communicate in English, a detailed 
explanation of why the duties of the position for which certification 
is sought require frequent contact with and communication with 
customers or contractors who cannot communicate in English, and why it 
is reasonable to believe that the foreign language customers and 
contractors cannot communicate in English.
(4) Combination Occupations
    The revised regulation makes two changes to the provision about 
combination of duties in the current regulation. First, the proposed 
regulation uses the term ``combination of occupations'' instead of 
``combination of duties'' as most jobs require the incumbent to perform 
a combination of duties. Second, the ability to document the need for a 
combination of occupations would be limited to two instead of three 
alternative forms of documentation that can be furnished by the 
employer to support a combination of occupations under the current 
regulations. For the reasons explained above in the discussion on the 
elimination of a business necessity standard, business necessity would 
no longer be a basis for justifying a job opportunity involving a 
combination of occupations. Further, the alternative provided in the 
current regulations for justifying a combination of duties which allows 
the employer to document that it has normally employed persons for that 
combination of duties would be replaced with the standard, discussed 
above, for justifying requirements other than experience and education 
that are based on the previous employment of a U.S. worker. 
Accordingly, the revised regulation limits the alternative forms of 
documentation the employer can furnish to support a combination of 
occupations to documentation that it employed a U.S. worker for the 
same combination of occupations involved in the application within 2 
years of filing the application and/or that workers customarily perform 
the combination of occupations in the area of intended employment.
    Consistent with our longstanding policy, combination jobs would be 
classified and prevailing wages determined in the following order: (1) 
The highest paying occupation; (2) the highest skilled occupation; or 
(3) the occupation that requires the largest percentage of the 
applicant's time. The highest paying occupation is considered first in 
classifying the job opportunity because the prevailing wage for the 
highest paying occupation has to be offered by the employer in order to 
conduct a valid test of the labor market for the highest paying 
occupation involved in the employer's job opportunity. If two or more 
occupations have the same high prevailing wage, the job opportunity 
would be classified according to the one that is the most highly 
skilled. If two or more occupations require the same high level of 
skill, the combination occupation would be classified in accordance 
with the one that would require the largest percentage of the 
incumbent's time.
8. Actual Minimum Requirements
    The proposed rule precludes employers including as a requirement 
for the job opportunity any experience the alien gained working for the 
employer in any capacity, including working as a contract employee. 
Since 1977, we have prohibited using experience gained with the 
employer to be used as qualifying experience except in cases where the 
alien gained the experience in dissimilar jobs or in instances where it 
is no longer feasible for the employer to train a U.S. worker. After 
over 2 decades of administering this regulation, we have concluded 
there is no material difference in the need to protect U.S. workers if 
the alien gained the experience in a similar job or a dissimilar job, 
or if the employer maintains that it is no longer feasible to train 
another worker for the job involved in the application.
    The need to protect U.S. workers stems in large measure from the 
same reason we are proposing to eliminate business necessity as a 
justification for exceeding job requirements that are normal to the job 
in the United States. In situations where the alien encumbers the job 
opportunity involved in the employer's application, job requirements 
tend to be manipulated in favor of the alien incumbent to the 
disadvantage of U.S. workers.
    The question of what employing entity is the employer has also 
presented considerable confusion. To clarify this issue and to maximize 
protection to U.S. workers we have concluded, consistent with the BALCA 
decision In the Matter of Haden, Inc. (88-INA-245, August 30, 1988), 
that the definition of employer should be broadly drawn. Accordingly, 
we propose to define the term ``employer'' to include predecessor 
organizations, successors in interest, a parent, branch, subsidiary, or 
affiliate, whether located in the United States or another country. 
Although ETA has followed Haden in administering the current 
regulations, the Department seeks comments on the proposed definition 
of employer for administering the provision pertaining to actual 
minimum requirement at Sec. 656.17(h).
9. Alternative Experience Requirements
    We are proposing to eliminate the use of alternative experience 
requirements as a means of qualifying for the employer's job 
opportunity for much the same reasons we are proposing to eliminate 
business necessity and to preclude the employer from including as a 
requirement for the job opportunity any experience the alien gained 
working for the employer in any capacity.
    As a practical matter, in virtually all instances involving 
alternative experience requirements the alien beneficiary has been 
employed, usually by the employer applicant, in a job requiring less 
than 2 years of training or experience. The Act only allocates 10,000 
visas a year to workers immigrating to work in the employment-based 
preference provided in the Act for such jobs (see 8 U.S.C. 
1153(b)(3)(A)(iii)). The visa category for these unskilled jobs is 
oversubscribed and there is approximately a 4\1/2\ year wait for aliens 
who are waiting to immigrate to work in jobs requiring less than 2 
years of training and experience. The other employment-based 
preferences requiring labor certification are generally not 
oversubscribed. The primary objective of the employer in specifying 
alternative experience requirements is to obtain certification for a 
job opportunity for which visa numbers are currently available. In 
these cases, as in the situations where business necessity 
justifications have been proffered, or in instances where the employer 
maintains the alien gained the experience in a dissimilar jobs or 
maintains that it is no longer feasible to train another worker for the 
job involved in the application, there is a need to protect U.S. 
workers as the job requirements tend to be manipulated to favor the 
alien beneficiary.
10. Conditions of Employment
    The current regulations do not explicitly address conditions of 
employment, but we consider conditions of employment, such as a

[[Page 30474]]

requirement to live in the employer's household or a requirement to 
work a split shift, an important element of working conditions. 
Generally, unusual working conditions can be justified if the employer 
can document that they are normal to the occupation in the area and 
industry. The one exception to this rule is for live-in household 
domestic service workers. Because of the past history of program abuse 
involving the filing of large numbers of accommodation cases motivated 
primarily by the desire to obtain permanent resident alien status for 
the alien beneficiary and not by legitimate employment needs, the 
proposed rule would incorporate the standards and criteria that have 
been developed by BALCA case law to determine when a live-in 
requirement for a household domestic service workers is acceptable.
    Therefore, live-in requirements are acceptable for household 
domestic service workers only if the employer can demonstrate that the 
requirement is essential to perform in a reasonable manner the job 
duties as described by the employer, and there are not cost-effective 
alternatives to a live-in household requirement. Mere employer 
assertions do not constitute acceptable documentation. For example, a 
live-in requirement could be supported by documenting two working 
parents and young children in the household, and/or the existence of 
erratic work schedules requiring frequent travel and a need to 
entertain business associates and clients on short notice. Depending 
upon the situation, acceptable documentation could consist of travel 
vouchers, written estimates of costs of alternatives such as baby 
sitters, and/or a detailed listing of the frequency and length of 
absences of the employer from the home.
    The proposed rule would also retain the filing and documentation 
requirements at 20 CFR 656.21(a) for live-in household domestic service 
workers that have been in the permanent labor certification regulations 
since 1977 to minimize program abuse and abuse of the alien, such as 
the requirement that a signed copy of the contract must be provided to 
the alien and documentation of the alien having 1 year's prior 
experience in the occupation and are described below in greater detail.
11. Layoffs
    The current regulations do not specifically require employers to 
consider potentially qualified U.S. workers who may have been laid off 
within a reasonably contemporaneous period of time of the filing of the 
labor certification application by the employer. However, it has always 
been our position that Certifying Officers have the authority to 
consider the availability of these workers under Sec. 656.24(b)(2)(i) 
and (iii) of the current regulations. Under Sec. 656.24(b)(2)(i), the 
Certifying Officer may determine whether there are other appropriate 
sources of workers from which the employer should recruit or might be 
able to recruit U.S. workers. Section 656.24(2)(iii) provides that in 
determining whether U.S. workers are available, the Certifying Officer 
shall consider as many sources as are appropriate. The proposed rule 
would provide Certifying Officers with broad authority to designate 
other sources of recruitment where the employer would be required to 
recruit for U.S. workers.
    Accordingly, the proposed rule would require employers, if there 
has been a layoff in the area of intended employment within 6 months of 
the filing of the application, to attest to and document notification 
and consideration of potentially qualified U.S. workers involved in the 
layoff and the results of such notification.
12. Alien Influence Over Job Opportunity
    When an employer seeks labor certification for an alien who is in a 
position to unduly influence hiring decisions or who has such a 
dominant role in, or close personal relationship with the employer and/
or employer's business that it is unlikely that the employer would 
replace the alien with a qualified U.S. applicant, BALCA decisions 
allow the Certifying Officer to determine that the job opportunity has 
not been clearly open to any qualified U.S. worker.
    The leading BALCA decision, Modular Container Systems, Inc. (89-
INA-228, July 16, 1991), articulates several factors that should be 
considered by Certifying Officers to determine whether or not the job 
opportunity is bona fide or clearly open to U.S. workers. The proposed 
rule incorporates this requirement. The proposed rule specifies what 
documentation the employer must be prepared to furnish to enable the 
Certifying Officer to evaluate the employer's application in light of 
the factors articulated by BALCA in Modular Container Systems. These 
factors include whether the alien:
     Is in the position to control or influence hiring 
decisions about the job for which labor certification is sought;
     Is related to the corporate directors, officers or 
employees;
     Was an incorporator or founder of the company;
     Has an ownership interest in the company;
     Is involved in the management of the company;
     Is one of a small number of employees;
     Has qualifications for the job that are identical to 
specialized or unusual job duties and requirements stated in the 
application; and
     Is so inseparable from the sponsoring employer because of 
his or her pervasive presence and personal attributes that the employer 
would be unlikely to continue in operations without the alien.

I. Optional Special Recruitment and Documentation Requirements for 
College and University Teachers

    Procedures for filing applications for college and university 
teachers in the current regulations are in the special handling 
procedures at 20 CFR 656.21(a). As indicated above, the new system does 
not provide for any special handling procedures. All applications we 
receive will be processed in the same way, although there may be some 
differences depending upon the occupation, in the attestation and 
documentation requirements. Consequently, procedures for filing 
applications on behalf of college and university teachers would be in a 
separate section. The documentation requirements for filing 
applications for college and university teachers would remain much the 
same as under the current regulation. The revised regulations, however, 
would specifically recognize current operating practice that employers 
that cannot or choose not to satisfy the special recruitment procedures 
for college and university teachers may avail themselves of the basic 
process in the new system.
    Whether employers file applications on behalf of college and 
university teachers under the special recruitment procedures or the 
basic process, they are required to be able to document, if requested 
by the Certifying Officer, that the alien was found to be more 
qualified than any U.S. worker who applied for the job opportunity. The 
Act requires, in the case of members of the teaching profession, that 
U.S. workers have to be equally qualified with respect to the alien 
beneficiary to be considered by the employer for the job opportunity 
for which certification is sought. See 8 U.S.C. 1182(a)(5)(A).

[[Page 30475]]

J. Live-in Household Domestic Service Workers

    Applications for household domestic service occupations would be 
filed, as in the current rule, under the revised basic process. Most of 
the documentation requirements for live-in household domestic service 
workers are unchanged from the current requirements contained in the 
current regulation at Sec. 656.21(a)(3)(i) and (ii). However, some of 
the information that was previously required to be provided in item 20 
of Form ETA 750, Part A, Statement for Live-at-Work Job Offers will no 
longer be collected on the application, but employers will be required 
to furnish that information if their applications are audited. This 
information includes a description of the residence, the number of 
individuals living in the household and their ages in the case of 
persons under the age of 18, and a statement as to whether or not free 
board and a private room not shared by another person will be provided 
to the alien. The employer would be required to attest on the 
application form that it will maintain all required documentation and, 
in the event of an audit, the employer will be required to submit this 
documentation to ETA, as well as the other documentation that is 
required for all occupations under the basic labor certification 
process.

K. Audit Letters

    Under the current regulations, if a Certifying Officer determines 
that a certification cannot be issued, a Notice of Findings (NOF) must 
first be issued to the employer notifying it of the specific reasons 
for which the Certifying Officer intends to deny the application. 
Issuing a NOF and analyzing employers responses is probably the most 
time consuming aspect of the current labor certification system. The 
proposed rule does away with NOF's.
    As indicated above, after an application has been determined to be 
acceptable for filing, a computer system would review it based upon 
various selection criteria that would allow applications to be 
identified for an audit. Additionally, as a quality control measure, 
the regulations provide that some applications could be randomly 
selected for audit without regard to the results of the computer 
analysis. Audit letters would be, for the most part, standardized, 
computer generated documents, stating the documentation that must be 
submitted by the employer. The proposed regulation would provide, in 
virtually all instances where an employer could be required to submit 
documentation in support of its attestations, the type of documentation 
the employer would be required to maintain and furnish in the event of 
an audit. Employers would be expected to have assembled and have a hand 
in all documentation necessary to support their applications before 
they are submitted.
    If the employer did not mail the requested documentation within 21 
days of the date of the audit letter, the application would be denied 
and the administrative-judicial review procedures provided for in the 
proposed rule would not be available. We have concluded that 21 days is 
sufficient time for employers to respond to audit letters because, as 
indicated above, the regulations indicate what documentation employers 
will be required to assemble, maintain and submit to respond to an 
audit letter. Extensions would not be granted to respond to audit 
letters. Failure to provide required documentation in a timely manner 
would be deemed a material misrepresentation to dissuade those small 
number of employers that conceivably may file applications without 
complying with all the documentation requirements from filing such 
applications. Further, failure to timely provide documentation would 
constitute a refusal to exhaust available administrative remedies and 
the administrative-review procedures would not be available.
    If the requested documentation is submitted on time, the Certifying 
Officer would review the documentation submitted by the employer under 
the proposed standards in Sec. 656.24 of this part.
    As discussed below in the section on labor certification 
determinations, if the Certifying Officer determines that the employer 
materially misrepresented documentation requirements due to a failure 
to provide required documentation pursuant to Sec. 656.21(a)(3)(ii) of 
this part, or otherwise determines a material misrepresentation was 
made with respect to the application for any reason, the employer may 
be required to conduct supervised recruitment pursuant to section 
656.21 of this part in future filings of labor certification 
applications for a period of 2 years. Commenters are invited to suggest 
items that can be added to the application form that would be helpful 
in identifying applications that may involve fraud and abuse.
    Before making a final determination in accordance with the 
standards in Sec. 656.24 of this part, the Certifying Officer could 
request supplemental documentation or require the employer to conduct 
supervised recruitment. A request for supplemental documentation could 
include a request for certain limited information not specified in the 
regulations, but that should be readily available to the employer. For 
example, if an application under review involves a job opportunity for 
a specialty chef, the Certifying Officer could request a copy of the 
restaurant's menu to aid in determining whether there was a bona fide 
job opening available for a specialty chef.
    Once the Certifying Officer has reviewed all requested information, 
the Certifying Officer will issue a final determination granting or 
denying the application.

L. Supervised Recruitment

1. General
    In any case where the Certifying Officer determines it to be 
appropriate, post-filing supervised recruitment may be ordered. This 
would include cases selected for audit and cases where serious 
questions arise about the adequacy of the employer's test of the labor 
market. It is anticipated, however, that the decision to order 
supervised recruitment will usually be based on labor market 
information. Supervised recruitment would operate much like the non-RIR 
recruitment under the current basic process at Sec. 656.21, except that 
the recruitment efforts would be directed by the Certifying Officer and 
not by the SWA, as is the case under the current system.
2. Recruitment Sources
    The advertisement requirements would be more detailed and rigorous 
than for pre-application recruitment. The advertisement would be 
required to be approved by the Certifying Officer before publication 
and the Certifying Officer would direct where it would be placed. We 
anticipate that Certifying Officers would, based on their broad 
knowledge of the labor market and experience in evaluating recruitment 
results placed in various newspapers, direct employers where to place 
advertisements. The advertisement would direct applicants to send 
resumes or applications to the Certifying Officer and would be required 
to include a summary of the employer's minimum job requirements. The 
Certifying Officer, as in the current rule, would have broad authority 
to designate other sources of workers where the employer should recruit 
for U.S. workers. The broad authority of the Certifying Officer to 
determine if there are other appropriate sources of workers where the 
employer should have recruited or might be able

[[Page 30476]]

to recruit U.S. workers would be moved from the determination process 
at 20 CFR 656.24 in the current regulations, to the section on 
supervised recruitment in the proposed rule at 20 CFR 656.21.
3. Recruitment Report
    At the completion of the supervised recruitment efforts, the 
employer will be required to document that its efforts were 
unsuccessful, including documenting the lawful job-related reasons for 
not hiring any U.S. workers who applied for the position. As explained 
above, employers have always been required to report on the lawful job-
related reasons why each U.S. worker applying for the job or referred 
to the employer was not hired under the current regulation at 20 CFR 
656.21(b)(6). This would be a specific requirement that employers would 
have to address in the employer report on supervised recruitment. The 
current regulation at 20 CFR 656.21(j) specifying the content of 
recruitment reports is potentially confusing in that it does not agree 
with the current requirement at 20 CFR 656.21(b)(6). In the present 
regulations employers only have to provide the lawful job related 
reasons for not hiring each U.S. workers interviewed. The other 
requirements for the employer's recruitment are much the same as in the 
current regulations. The employer would be required to report the 
number of U.S. workers who applied for the position, the number of 
workers interviewed, the names and addresses of the U.S. workers 
interviewed for the job opportunity, and the job title of the person 
who interviewed the workers.
    We are taking the same position on who is a qualified U.S. worker 
in the supervised recruitment process as we took in our discussion of 
the issue for the prefiling recruitment process. A U.S. worker may be 
qualified even if he/she does not meet every one of the employer's job 
requirements. U.S. workers would be considered qualified if the U.S. 
workers, by education, training, or a combination thereof, qualify by 
being able to perform, in the normally accepted manner, the duties 
involved in the occupation. U.S. workers would be considered qualified 
if they could acquire, during a period of reasonable on-the-job 
training, the skills necessary to perform as customarily performed by 
other workers similarly employed, the duties involved in the 
occupation. Rejection of such workers based solely on lack of 
familiarity with some particular subsidiary job duty will not be 
permitted.

M. Labor Certification Determinations

1. Referral of Applications to the National Office for a Determination 
and Specification of Applications to be Handled in the National Office
    The provisions that applications involving special or unique 
problems may be referred to the National Certifying Officer by the 
Regional Certifying Officer and that certain types of applications or 
specific applications be handled in the National Office have been 
deleted because they are no longer necessary. Under the existing 
regulations there are specific provisions governing the processing of 
an individual application through the SWA's and the ETA regional 
offices. The current regulations specify, depending upon the geographic 
location of the employer, which applications would be processed and 
reviewed by the various Certifying Officers. Accordingly, there was a 
need for provisions in the regulations to provide the authority for 
regional Certifying Officers to refer applications to the National 
Office or for the National Office to have the authority to direct that 
certain types of applications or specific applications be handled in 
the national office. Under the new system the SWA's will no longer be 
involved in case processing and the proposed regulations do not specify 
which applications will be reviewed by the various Certifying Officers, 
including the National Certifying Officer. Therefore, specific 
provisions are not required in the regulations to govern referrals by 
regional Certifying Officers of applications involving unique or 
special problems to the National Certifying Officer, or for the 
National Office to direct that certain types of applications or 
specific applications be handled in the ETA National Office.
2. Designation of Recruitment Sources
    The determination process has been revised to reflect that all fact 
finding will have been completed by the time the Certifying Officer 
makes a determination. Consequently, the broad authority of the 
Certifying Officer to designate other appropriate recruitment sources 
from which the employer should recruit for U.S. workers is deleted from 
the determination process and included in the section detailing the 
operation of supervised recruitment in the new system at Sec. 656.21.
3. Qualified U.S. Workers
    As indicated above, consistent with the provisions in the 
regulations governing the content of recruitment reports that must be 
completed by employers whether they conduct prefiling or supervised 
recruitment, the section on determinations would be revised to provide 
that, alternatively, the U.S. worker is qualified if he/she can acquire 
during a reasonable period of on-the-job training, the skills necessary 
to perform the duties involved in the occupation, as customarily 
performed by other U.S. workers similarly employed.
4. Material Misrepresentations
    As indicated above, if a Certifying Officer determines that the 
employer materially misrepresented it had complied with all 
documentation requirements due to a failure to provide required 
documentation pursuant to Sec. 656.21(a)(3)(ii) of this part, or 
otherwise determines a material misrepresentation was made with respect 
to the application for any reason, the employer may be required to 
conduct supervised recruitment pursuant to section 656.21 of this part 
in future filings of labor certification applications for a period of 2 
years.
5. Reconsideration
    The present regulations are silent with respect to the availability 
of motions for reconsideration after a Final Determination. 
Historically, Certifying Officers sometimes honored such motions but 
generally treated them as requests for review and transmitted the 
matter to the ALJ.
    In order to address this matter, the regulation is amended to 
specifically provide that while motions for reconsideration before the 
Certifying Officer may be filed, the Certifying Officer may, in his/her 
complete discretion, choose to treat the motion as a request for 
review.

N. Board of Alien Labor Certification Appeals Review, Consideration and 
Decisions

1. Only Employer Can Request Review
    The current regulations provide that if a labor certification is 
denied, a request for review of the denial may be made to the Board of 
Alien Labor Certification Appeals, by the employer and by the alien, 
but in the case of the alien, only if the employer also requests such a 
review. Only an employer can file An Application for Alien Employment 
Certification. Moreover, the employer can withdraw its application at 
any time. In view of the primacy of the employer in the labor 
certification process, we have concluded that it makes little sense to 
allow an alien to also file an appeal and are proposing to only 
authorize employer appeals.

[[Page 30477]]

2. Time Allowed to File Requests for Review
    Consistent with the objective of streamlining and reducing 
processing time, the proposed rule would reduce the time to file a 
request for review to 21 calendar days from the 35 days specified in 
the current regulations. The Department believes that 21 days is 
sufficient time for an employer to file a request for review.
3. Aliens of Exceptional Ability in the Performing Arts
    All references to aliens of exceptional ability in the performing 
arts would be deleted from the sections in the proposed rule detailing 
the procedures for filing requests for review and from the procedures 
to be followed by the Board in considering appeals and issuing 
decisions, since aliens of exceptional ability in the performing arts 
would be moved to Schedule A. The proposed rule would provide, as does 
the current rule, that the Schedule A determination of INS shall be 
conclusive and final.
4. Amicus Briefs
    The provisions for amicus briefs for cases involving college and 
university teachers and aliens of exceptional ability in the performing 
arts would also be deleted from the sections of the proposed rule 
detailing the procedures to be followed in filing requests for review 
and the procedures to be followed by the Board in considering appeals 
and issuing decisions. Provisions for amicus briefs would no longer be 
applicable to aliens of exceptional ability in the performing arts, 
since they would be on Schedule A and Schedule A determinations of the 
INS are conclusive and final. Specific provisions for amicus briefs are 
no longer necessary in the case of college and university teachers 
because BALCA, in practice, accepts such briefs from any party that 
wishes to file one. The current language implies that BALCA would 
accept amicus curiae briefs only in cases involving college and 
university teachers and aliens of exceptional ability in the performing 
arts.
5. Copies of Appeal File
    In the interest of providing improved customer service, the revised 
regulation would provide that the Certifying Officer shall send a copy 
of the Appeal File to the employer in lieu of only a copy of the index 
to the Appeal File to the employer. This would obviate the need for the 
employer to examine the Appeal File at the office of the Certifying 
Officer. The named alien beneficiary of the labor certification would 
not receive a copy of the appeal file for much the same reasons he or 
she would not be allowed to file a request for review as discussed 
above.
6. Elimination of Remands
    The current regulations provide that the Board may remand cases to 
a Certifying Officer for further consideration or fact-finding and 
determination. We anticipate that cases processed under the new system 
would be sufficiently developed by the time they get to the Board that 
there should be no need to remand a case to a Certifying Officer. The 
proposed regulation authorizes the BALCA to either affirm or reverse 
the Certifying Officer's decision, but makes no provision for remands.

O. Validity and Invalidation of Labor Certifications

Substitution of Alien Beneficiaries
    We published an interim final rule on October 23, 1991, effective 
November 22, 1991, which limited the validity of labor certifications 
to the specific alien named on the labor certification application. 
(See 56 FR 54925, 54930.) This interim final rule had the effect of 
eliminating the practice of allowing the substitution of alien 
beneficiaries on approved labor certifications. On December 1, 1994, 
the U.S. District Court for the District of Columbia, acting under the 
mandate of the U.S. Court of Appeals for the District of Columbia in 
Kooritzky v. Reich, 17 F.3d 1509 (D.C. Cir. 1994), issued an order 
invalidating that portion of the interim final rule which eliminated 
substitution of labor certification beneficiaries. The order had the 
effect of reinstating the Department's previous practice of allowing 
substitution of alien beneficiaries on approved labor certifications.
    Although the regulation was never conformed to the District Court 
order, we reinstated the practice of allowing the substitution of alien 
beneficiaries on approved labor certifications. Subsequently, 
operational responsibility for substituting alien beneficiaries on 
approved labor certifications was delegated to INS. INS issued a 
memorandum on March 7, 1996, Subject: Substitution of Labor 
Certification Beneficiaries, to implement the delegation of the 
responsibility for substituting labor certification beneficiaries to 
the Service. On March 22, 1996, ETA issued a Field Memorandum (FM) to 
its Regional Administrators informing them that all requests for 
substitution received after the date of the FM were to be returned to 
the employer with instructions to file the request with INS along with 
a copy of the I-140 preference petition. The proposed rule would return 
the regulatory provisions detailing the scope of the certification at 
20 CFR 656.30(c)(1) and (2) to read the same as they did before 
November 22, 1991. As before the Interim Final Rule, the regulation 
does not mention substitution.

P. Revocation of Approved Labor Certifications

    We propose to provide Certifying Officers with limited authority to 
revoke labor certifications within 1 year of the date the labor 
certification is granted or before a visa number becomes available to 
the alien beneficiary, whichever occurs first. The proposed rule lists 
the steps that may be taken by the Certifying Officer, who issued the 
certification, or an authorized person acting on his or her behalf, in 
consultation with the National Certifying Officer, to revoke the 
certification if the Certifying Officer finds that the certification 
was improvidently granted.
    The proposal also provides that an employer may file an appeal with 
BALCA if it first files timely rebuttal evidence in response to the 
Certifying Officer's Notice of Intent to Revoke and the Certifying 
Officer determines that the certification should be revoked.

Q. Prevailing Wages

1. PWDR
    We propose to standardize the PWD process through the use of the 
PWDR form. Before submitting a labor certification application under 
the new system, the employer will be required to submit the new PWDR 
form to the SWA in the State where the work will be performed. The PWDR 
form would require information from the employer that would allow the 
SWA to make the required determination of the prevailing wage for the 
job opportunity for which certification is sought. Specifically, the 
proposed form would require the employer to indicate the location of 
the job opportunity in terms of city or county and state, the title of 
the job and a description of the duties to be performed, the education, 
training, and/or experience required for the job, including any special 
requirements.
    Upon receipt of a PWDR form, the SWA would review it and would 
determine the occupational classification and the area of intended 
employment. The SWA would then enter its determination on the PWDR form 
and return it with its endorsement

[[Page 30478]]

to the employer. The PWDR form may then be submitted in support of a 
permanent labor certification application. The SWA determination would 
include a State agency tracking number unique to that particular 
determination that would be used by ETA for program management 
purposes. The determination would also include the occupational code 
assigned to the job, the specific prevailing wage level determined by 
the SWA and the source of that information, the level of skill of the 
job in the case of those determinations made using the wage component 
of the Occupational Employment Statistics (OES) survey, and the date 
upon which the determination was made. If there is no collective 
bargaining agreement that would set the prevailing wage for the 
position, the employer will have the option of submitting an 
alternative wage survey or other source data for which the employer 
wishes the SWA to approve as a determinant of the prevailing wage in 
response to that specific request.
2. Validity Period of PWD
    We are proposing that the SWA must specify the validity period of 
PWD on the PWDR form, which in no event shall be less than 90 days or 
more than 1 year from the determination date entered on the PWDR. 
Employers filing LCA's under the H-1B program must file their labor 
condition application within the validity period. Since employers 
filing applications for permanent labor certification can begin the 
required recruitment steps required under the regulations 180 days 
before filing their applications, they must initiate at least one of 
the recruitment steps required for a professional or nonprofessional 
occupation within the validity period of the PWD to rely on the 
determination issued by the SWA.
3. Collective Bargaining Agreement, Davis Bacon Act and Service 
Contract Act
    Under the current regulations at Sec. 656.40 the first order of 
inquiry for a SWA in determining the prevailing wage is to determine if 
the employer's job opportunity is in an occupation which is subject to 
a wage determination in the area under the Davis Bacon Act (DBA) or the 
McNamara-O'Hara Service Contract Act (SCA). If there is a prevailing 
wage under one of those statutes in the area of intended employment it 
must be used as the prevailing wage whether or not the employer has a 
Government contract in the area of intended employment. We are 
proposing to amend the prevailing wage regulation so that the first 
order of inquiry by the SWA in determining prevailing wages will be to 
determine whether or not the employer's job opportunity is covered by a 
union contract which was negotiated at arms length between a union and 
the employer. If the job opportunity is covered by such a contract it 
will be the prevailing wage for labor certification purposes.
    The BALCA decision in El Rio Grande on behalf of Galo M. Narea 
(1998-INA-133, February 4, 1998; Reconsideration July 28, 2000) has 
prompted us to review the requirement for use of DBA and SCA wage 
determinations in making prevailing wage determinations for the 
permanent alien labor certification program. As explained more fully 
below, BALCA, in El Rio Grande, held that it has jurisdiction to review 
challenges to PWD's based on an SCA wage determination.
    The use of DBA and SCA statutory wage determinations first appeared 
in the permanent labor certification regulations in 1967 (see 32 FR 
10932). The use of DBA and SCA wage determinations in the permanent 
labor certification was in large measure prompted by concerns for 
administrative convenience. The SCA and DBA wage determinations were 
viewed as a convenient source of wage determinations that could be used 
for labor certification purposes. At that time, wage surveys were not 
as numerous, comprehensive and well developed as they are now.
    On October 31, 1997, ETA in General Administrative Letter No. 2-98; 
Subject: Prevailing Wage Policy for Nonagricultural Immigration 
Programs, stated it had determined that the most efficient and cost 
effective way to develop consistently accurate prevailing wage rates is 
to use the wage component of the Bureau of Labor Statistics' expanded 
Occupational Employment Statistics (OES) program. The OES is based on 
the Standard Occupational Classification System (SOC), which will be 
used by all Federal statistical agencies for reporting occupational 
data. The OES provides arithmetic means by occupation and relevant 
geographic area for use in making prevailing wage determinations in the 
labor certification program.
    There are marked differences in the way prevailing wages are 
determined under the DBA and SCA programs. The first order of inquiry 
in making SCA and DBA wage determinations is the wage paid to the 
majority (more than 50 percent) of the workers in a particular 
classification. See 29 CFR parts 1 and 4. Under SCA, if there is no 
rate paid to the majority, the median is ordinarily used rather than 
the mean. The regulations for the SCA program at 29 CFR 4.51(c) also 
provide that in those instances in which a wage survey for a particular 
locality may result in insufficient data, the prevailing wage may be 
established through a ``slotting'' procedure whereby wage rates for an 
occupational classification are based on a comparison of equivalent or 
similar job duty and skill characteristics between the classification 
studied and those for which no survey data is available. Under the OES 
system, if the data obtained for an occupation are insufficient, larger 
areas are used in aggregating wage data so that an appropriate 
arithmetic mean can be determined. Operational difficulties are also 
encountered in applying DBA and SCA statutory wage determinations 
because they are based on a different occupational classification 
system than the SOC. Further, SCA wage determinations frequently do not 
contain levels within an occupation, while the OES survey data 
furnished to ETA and the SWA's provides two levels of wages for every 
occupation.
    We have concluded that it makes little sense to make determinations 
based on different statistical measures arrived at through inconsistent 
methodologies in determining prevailing wages mandatory for the 
permanent labor certification program. Accordingly, the proposed rule 
deletes the provision requiring that DBA and SCA wage determinations 
must be used in determining prevailing wages. Employers will, however, 
have the option to use current DBA and SCA wage determinations in 
addition to using the arithmetic mean provided by the wage component of 
the Occupational Employment Statistics Survey and employer provided 
wage information in accordance with the proposed provision at section 
656.40(b)(4) of this part.
    Surveys used to arrive at DBA wage determinations are not conducted 
by BLS, but by the Wage and Hour Division. Rather than sample surveys, 
they are universe surveys and data is sought on all projects in the 
area for a particular type of construction--ordinarily building 
construction, heavy construction, highway construction, and residential 
construction. The prevailing wage is determined based on the rate paid 
the majority, or if there is no majority, the arithmetic mean, of 
workers employed in the occupation based on wage data from the peak 
workweek for each project during the survey period (ordinarily 1 year), 
thereby allowing duplicated counting of

[[Page 30479]]

workers. Since these procedures are significantly different than those 
set forth in GAL 2-98 cited above, and do not provide an arithmetic 
mean of all of the workers in the occupation in the appropriate 
geographic area, we are considering the appropriateness of use of 
Davis-Bacon surveys in the permanent labor certification program.
    We invite comment on the appropriate use of the surveys conducted 
to arrive at DBA and SCA wage determinations.
    Although the proposed rule for determining prevailing wages does 
not contain a provision about the use of DBA and SCA wage 
determinations, we are aware that the regulations may be changed after 
review of the comments. Therefore, as a result of the El Rio Grande 
decision, the proposed rule for the prevailing wage panel review of 
prevailing wage determinations, discussed below, contains provisions 
for review of determinations involving DBA or SCA wage determinations.
    We are also proposing changes similar to those discussed above to 
Sec. 655.731 of the regulations under the H-1B program. The INA 
requires that the wages paid to an H-1B professional worker be the 
higher of the actual wage paid to workers in the occupation by the 
employer or the prevailing wage for the occupational classification in 
the area of employment. The H-1B regulations incorporate the language 
of 20 CFR 656.40 (as suggested by H.R. Conference Report, No. 101-95, 
October 26, 1990, page 122) and provide employers filing applications 
the option of obtaining a PWD from the SWA, using an independent 
authoritative source, or using another legitimate source as provided by 
Sec. 655.731(a)(2)(iii)(B) and (C) of the H-1B regulations. See also 
Sec. 655.731(b)(3). Thus we are proposing changes to the H-1B 
regulations similar to the ones we are proposing to Sec. 656.40 of the 
regulations governing the determination of prevailing wages for the 
permanent labor certification program.
4. Elimination of 5 Percent Variance
    We are proposing to eliminate a provision from the existing 
regulations governing the requirements for paying the prevailing wage 
for the occupation and area. Under Sec. 656.40(a)(2)(i), the wage set 
forth in a labor certification application is considered as meeting the 
prevailing wage standard if it is within 5 percent of the average rate 
of wages. That is, the employer is considered to meet the prevailing 
wage requirement as long as it offers to pay 95% of the prevailing wage 
as determined by the SWA. The rationale for this provision, which has 
been in the Department's permanent program regulations since 1977, was 
that it was not always possible to determine an average rate of wages 
with exact precision. Before January 1, 1998, when we implemented the 
use of the wage component of the OES survey, SWA's usually obtained 
prevailing wage information by purchasing available published surveys 
or by conducting ad hoc telephone surveys of employers in the area of 
intended employment likely to employ workers in the occupational 
classification involved in an employer's labor certification 
application. Since the statistical precision of these methods varied 
greatly, we believed it was necessary to allow some variance in the 
rate offered by the employer.
    The wage component of the OES survey is conducted by the Bureau of 
Labor Statistics (BLS) and, with the exception of the decennial Census, 
is the most comprehensive survey conducted by an agency of the Federal 
government. The OES program conducts a yearly mail survey designed to 
produce estimates of employment and wages for specific occupations. The 
OES program collects data on wage and salary workers in non-farm 
establishments in order to produce employment and wage estimates for 
over 750 occupations by geographic area and by industry. Estimates 
based on geographic areas are available at the National, State, and 
Metropolitan Area levels. The OES program surveys approximately 400,000 
establishments per year, taking three years to fully collect the sample 
of 1.2 million establishments. This total covers over 70 percent of the 
employment in the U.S. Due to the comprehensive nature of the survey 
and the resulting degree of statistical precision with regard to the 
results thereof, we believe that it is no longer necessary to provide 
the 5% variance authorized under the existing labor certification 
regulations at Sec. 656.49(a)(2)(i), and the H-1B regulations at 
Secs. 655.731(a)(2)(iii) and 655.731(d)(4).
5. Employer-Provided Wage Data
    The proposed rule directs SWA's to consider the use of employer-
provided wage data in the absence of a PWD obtained through a 
collective bargaining agreement negotiated between the union and the 
employer.
    In all cases where the employer submits a survey or other wage data 
for which it seeks acceptance, the employer would be required to 
provide the SWA with enough information about the survey methodology, 
including such items as the sample frame size and source, sample 
selection procedures, and survey job descriptions, to allow the SWA to 
make a determination about the adequacy methodology used to conduct the 
survey in accordance with guidance issued by the ETA National Office. 
The function of the SWA in these instances is merely to determine if 
the employer-provided survey is adequate and acceptable. ETA's National 
Office will provide guidance to be used in evaluating the statistical 
methodology used in producing the employer provided survey. The role of 
the SWA is not to determine whether the employer provided survey is 
more or less accurate than the prevailing wage information provided by 
the OES survey. If the employer-provided data is found to be 
acceptable, the specific wage rate obtained from that source will be 
determined to be the prevailing wage in responding to that particular 
request. We will continue our existing policy of not considering the 
issuance of a PWD based upon the acceptance of employer-provided wage 
data for a specific job opportunity as superseding the OES wage rate 
for subsequent requests for PWD's in the same occupation and area, 
since such determinations are made on a case-by-basis. For example, the 
job description in the employer provided survey may not be general 
enough to apply to all employers that employ workers in the occupation 
for which certification is being sought in a particular instance in the 
area of intended employment.
    The proposed rule would also provide that if the employer-provided 
data is found not to be acceptable, the SWA's response to the employer 
must include the specific reasons why it is not acceptable (e.g., the 
geographic area covered by the survey is broader than that which is 
necessary to obtain a representative sample), and must provide the 
employer with the appropriate prevailing wage rate as derived from the 
OES survey data. Employers will have an opportunity to provide one 
supplemental filing that must be considered by the SWA. If the SWA 
finds the survey unacceptable after considering the supplemental 
information it must provide the employer the reasons why the 
supplemental information does not make the survey acceptable.
    The employer after receiving notification that the survey it 
provided for the SWA's consideration will be able to file a new request 
for a prevailing wage determination, or appeal under Sec. 656.41.

[[Page 30480]]

6. Use of Median
    Another change we are proposing is to permit an additional measure 
of central tendency to be used in determining prevailing wages. 
Specifically, we are proposing that employers be allowed to submit 
alternative sources of wage data that provide a median wage rate for an 
occupational classification.
    Under the current regulations, at Sec. 656.40(a)(2)(i), the 
prevailing wage is defined as:

    (t)he average rate of wages, that is, the rate of wages to be 
determined, to the extent feasible, by adding the wage paid to 
workers similarly employed in the area of intended employment and 
dividing the total by the number of such workers.

This process yields an arithmetic mean rate of wages. We propose to 
allow employers to submit alternative sources of wage data that provide 
the median wage rate, but do not provide the arithmetic mean of wages 
of U.S. workers employed in the area of intended employment. The median 
of a data set is the middle number when the measurements are arranged 
in ascending (or descending) order. Allowing the use of alternative 
sources of wage data that provide median wage rates would also increase 
the pool of published data available for the employer to use in 
obtaining valid prevailing wage surveys. Therefore, we propose to allow 
the use of median wage rates as the basis for determining the 
applicable prevailing wage under Sec. 656.40 of the permanent labor 
certification regulations, and under Sec. 655.731(b)(3)(iii).
7. Definition of Similarly Employed
    We are proposing an additional change in the H-1B and permanent 
labor certification regulations to the definition of ``similarly 
employed'' for purposes of determining the pool of workers to be 
included in a survey conducted to arrive at the applicable prevailing 
wage rate. The existing regulations, at Sec. 656.40 (b), provide that 
``similarly employed'' means:

    Having substantially comparable jobs in the occupational 
category in the area of intended employment, except that, if no such 
workers are employed by employers other than the employer applicant 
in the area of intended employment, ``similarly employed'' shall 
mean:
    (1) Having jobs requiring a substantially similar level of 
skills within the area of intended employment; or
    (2) If there are no substantially comparable jobs in the area of 
intended employment, ``having substantially comparable jobs with 
employers outside of the area of intended employment.''

Essentially the same language is also in the H-1B regulations at 
Sec. 655.731(a)(2)(iv).
    Under the current regulations, the survey area should be expanded 
or similar jobs considered only if there are no other employers of 
workers with substantially comparable jobs in the area of intended 
employment other than the employer applicant. The proposed regulatory 
language would alter this construct to be more in line with the SWA's 
operational practice of generally expanding the area included in the 
survey whenever a representative sample of workers with substantially 
comparable jobs in the area of intended employment cannot be obtained, 
even if there are, in fact, one or more other employers in area who 
employ such workers. The original language was promulgated at a time 
when SWA's generally conducted ad hoc surveys to determine prevailing 
wages. As a means to conserve resources, SWA's were instructed to 
expand the geographic scope of the survey only if there were no other 
employers other than the employer applicant employing workers with 
substantially comparable jobs in the area. As a means to ensure the 
confidentiality of the data, BLS will not publish reportable wage data 
where the sample frame is such that participating employers could 
readily be identified. It would be much more difficult for BLS to get 
employers to participate in the survey if an iron-clad guarantee of 
confidentiality could not be assured. Therefore, reportable wage data 
are only published and available for alien certification purposes if a 
representative sample of similarly employed workers in the area of 
intended employment can be obtained. For these reasons, we are 
proposing to amend the regulations to provide that the area covered by 
a survey should be expanded any time it is not possible to obtain a 
representative sample of similarly employed workers in the area of 
intended employment.
8. Issues Specific to H-1B Program
a. Transition of H-1B Workers From Inexperienced to Experienced
    After further experience with the H-1B program, we have realized 
that as a result of the 3-year LCA issued under the current 
regulations, a prevailing wage determination for an employee who is 
inexperienced and cannot work without close supervision when originally 
hired may be applicable for 3 years, despite the fact that the employee 
is likely to begin working independently well before the end of the 3-
year period. We therefore propose to amend Sec. 655.731(a)(2) to 
provide that where a survey that is the basis for a prevailing wage 
determination contains more than one wage rate for the occupational 
classification, the employer is required to pay the H-1B workers at 
least the applicable wage for the work performed. In other words, as an 
entry-level worker gains experience and is able to work independently, 
the applicable prevailing wage would be the wage from the same survey 
for workers who work independently. Since at all times the prevailing 
wage would be the applicable rate from the survey that was the basis 
for the initial wage determination, we believe this is consistent with 
the statutory mandate that the prevailing wage be based on the best 
information available as of the time of filing the application.
b. Appeals by Employees and Other Interested Parties
    We are also considering providing employees and other interested 
parties the right to appeal determinations of the prevailing wage made 
by ETA at the request of the Administrator of the Wage and Hour 
Division under Sec. 655.731(d). Although we consider this to be a 
procedural matter not requiring notice and comment under the 
Administrative Procedure Act, we are seeking comments on the 
advisability of providing such appeal rights and the methodology to be 
used in administering appeals that may be made by interested parties 
other than employers. Commenters are invited to submit comments on 
these issues.

R. ETA Prevailing Wage Panel

    Currently, SWA's provide PWD's to employers that wish to file 
applications to obtain alien workers under the H-1B (professionals in 
specialty occupations), H-1C (registered nurses at eligible health care 
facilities), and H-2B (nonagricultural temporary labor) nonimmigrant 
programs, and the labor certification process for the permanent 
employment of aliens in the United States. Under GAL 2-98, employers 
intending file applications under one of the nonimmigrant programs can 
only challenge the PWD through the Employment Service Complaint System 
(ESCS). See 20 CFR 658, subpart E. Employers that intend to file 
applications in the permanent alien labor certification program, on the 
other hand, may file appeals about SWA PWD's directly with the 
Certifying Officers. The challenges filed directly with Certifying 
Officers tend to be resolved more quickly than those filed in the ESCS. 
The existence of these two different systems of dealing with prevailing 
wage challenges has proven

[[Page 30481]]

to be confusing to employers, needlessly complicated, and time 
consuming. The resulting confusion on the part of employers is 
understandable since the prevailing wage methodology to determine 
prevailing wages for all programs is based on the regulation governing 
the determination of prevailing wages for the permanent program at 20 
CFR 656.40.
    The current structure in place for administering the PWD process 
and handling prevailing wage challenges has caused some inconsistency 
in the issuance of PWD's and the response to prevailing wage 
challenges. There are currently 9 Certifying Officers who provide 
oversight to the SWA's within their jurisdiction over the day-to-day 
operations involved in the issuance of prevailing wages to employers. 
Each of the 9 Certifying Officers have responsibility for resolving 
such challenges submitted by employers wishing to file permanent 
applications for alien employment certification.
    To improve customer service and to enhance consistency in the day-
to-day administration of the PWD process and in the resolution of 
challenges to PWD's, we propose to establish a prevailing wage panel 
(PWP) to adjudicate all complaints, arising from the PWD process. This 
would include, in the case of the H-1B program, not only those 
challenges that may be filed in response to the initial receipt of a 
PWD by the employer from a SWA, but also those instances when the 
Administrator of the Wage and Hour Division receives a PWD from ETA in 
the course of an enforcement action under to 20 CFR 656.731(d)(2). In 
those instances where the Wage and Hour Administrator obtains a 
prevailing wage from ETA, we anticipate that the Administrator when he/
she informs the employer of the RD's determination, will also inform 
the employer that it may appeal the determination through the PWP and 
the procedures for filing such appeals.
    By centralizing the review process in a single adjudicative body, 
we hope to increase the consistency of the decisions and establish 
clearly defined precedents governing the issuance of PWD's and the 
standards governing the use of alternative sources of wage data 
submitted by employers. We anticipate that the PWP will deal primarily 
with prevailing wage challenges arising from SWA determinations 
rejecting alternative sources of wage data. We anticipate that such 
challenges arising from the use of OES prevailing wage data will 
involve primarily, if not exclusively, questions as to whether the job 
was coded properly in terms of the occupational classification and the 
level of skill applied, and on whether the survey was based on the 
appropriate geographical area.
    The size and composition of the PWP will be determined by the 
Chief, Division of Foreign Labor Certifications, and is subject to 
change depending upon the volume and complexity of employer challenges 
to be considered. We propose that the staffing of the panel may include 
SWA and Federal staff with experience in the prevailing wage determines 
area, and may also include specialists in survey methodology, PWD's, 
and occupational analysis and classification.
    We are proposing that the employer must request, in writing, review 
of a PWD by the PWP in writing within 21 calendar days of the date the 
SWA issued the determination. The appeal must be mailed to the SWA that 
issued the prevailing wage determination. The appeal must set forth the 
particular grounds for the request and include copies of any of the 
materials submitted by the employer to the SWA pertaining to the PWD up 
until the determination date entered on the PWDR form by the SWA and 
copies of all the documents received from the SWA concerning the PWD. 
Failure to file a request for review would constitute a failure to 
exhaust administrative remedies.
    The SWA would then send a copy of the employer's appeal, including 
any material added by the SWA, to the PWP, and would also send a copy 
of the appeal file as sent to the PWP to the employer. The employer 
would be able to furnish or suggest directly to the PWP the addition of 
any documentation that is not among the materials sent to the PWP by 
the SWA.
    The PWP will review the SWA PWD solely on the basis upon which the 
PWD was made. The employer would have 21 days after receipt of the 
decision of the PWP to request a review by BALCA.
    As explained above, although the proposed prevailing wage 
regulation deletes the use of DBA and SCA wage determinations, we seek 
comments on a proposed procedure providing for review of DBA and SCA 
wage determinations pending analysis of the comments received on the 
proposed rule. Accordingly, in the event we conclude that SCA and DBA 
wage determinations should be retained in the regulation, we propose to 
handle requests for review of PWD's based on DBA and SCA wage rates 
under the review procedures established by the Employment Standards 
Administration (ESA) for interested parties to obtain review of such 
rates at 29 CFR 1.8 and 7, subpart B in the case of DBA wage 
determinations and at 29 CFR 4.55, 4.56 and 8, subpart B in the case of 
SCA wage determinations. This procedure would enhance administrative 
consistency in the administration of the DBA and SCA, and would provide 
for administrative review in the agency with expertise. The current 
labor certification regulations and the proposed rule, in relevant 
part, contain a provision that reads as follows:

    If the job opportunity is in an occupation which is subject to a 
wage determination in the area under the Davis-Bacon Act * * * or 
the McNamara O'HARA Service Contract Act * * *, the prevailing wage 
shall be at the rate required under the statutory determination. 
Certifying Officers shall request the assistance of the DOL 
Employment Standards wage specialists if they need assistance in 
making this determination.

    Before the decision of BALCA in El Rio Grande, it had been our 
position that Certifying Officers did not have the authority to 
determine whether or not to use an SCA or DBA wage determination in the 
labor certification context and that BALCA did not have the authority 
to review challenges to PWD's based on a SCA wage determinations. In El 
Rio Grande, however, BALCA held that:

    The regulatory language * * * places the ultimate responsibility 
for the SCA wage determination in a labor certification context on 
the CO, and only places Wage and Hour Division in an advisory role. 
Morever, the regulatory framework does not provide employers in 
labor certification proceedings the right to challenge SCA wage 
determinations through the Wage and Hour appeal procedures at 29 CFR 
4.55, 4.56, and 8.2. Accordingly, we conclude that the Board of 
Alien Labor Certification appeals has jurisdiction, indeed the 
obligation, to review challenges to SCA wage determinations made by 
Cos pursuant to 20 CFR 655.40(a)(1).

    Although the Board's decision in El Rio Grande did not specifically 
address DBA wage determinations, it would in all probability be equally 
applicable to DBA wage determinations, since they are used the same way 
SCA wage determinations are used in the labor certification regulations 
and the current review procedures established for DBA wage 
determinations do not provide employers in labor certification 
proceedings the right to challenge SCA wage determinations through the 
appeal procedures at 29 CFR 1.8 and 7, subpart B.
    Executive Order 12866: We have determined that this proposed rule 
is not an ``economically significant regulatory action'' within the 
meaning of Executive Order 12866. The direct incremental costs 
employers would incur because of this rule, above business practices 
required by the current rule of employers that are applying for 
permanent alien workers

[[Page 30482]]

will not amount to $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. The Department believes 
that any potential increase in recruitment and recordkeeping costs 
associated with the proposed rule would be more than offset by the 
combination of eliminating the role of the SWA's in the recruitment 
process and, consequently, eliminating the time employer's currently 
spend in working with SWA's to meet regulatory requirements. Further, 
the expected large reduction in average processing time to process 
applications will lead to a reduction in the resources employers spend 
on processing applications and will eliminate the need of the 
Department to periodically institute special, resource intensive 
efforts to reduce backlogs which have been a recurring problem under 
the current process. Any cost savings realized, however, will not be 
greater than $100 million. Public comment is requested on this issue.
    While it is not economically significant, the Office of Management 
and Budget (OMB) 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. We have 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 effects 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, we have 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

    Summary:. This NPRM contains revised paperwork requirements at 
sections 655.731, 656.10, 656.14, 656.15, 656.16, 656.17, 656.18, 
656.19, 656.21, 656.24 , 656.26, 656.40 and 656.41. The revised 
paperwork requirements are necessary to implement a streamlined system 
to process and adjudicate applications for permanent labor 
certification.
    Published at the end of this NPRM are two forms that would be 
required to implement the streamlined process for the permanent labor 
certification program. One form is the Prevailing Wage Determination 
Request (PWDR) (ETA Form 9098) and the other is be the Application for 
Permanent Labor Certification (ETA Form 9099). Supporting documentation 
would not have to be submitted with an application, but employers would 
be required to assemble and maintain required supporting documentation 
and be able to produce such documentation in the event of an audit by 
an ETA Certifying Officer.
    Need: The design and implementation of a streamlined permanent 
labor certification process that will yield a large reduction in the 
average time required to process labor certification applications 
requires revised paperwork requirements and the design and 
implementation of forms that are designed for automated processing.
    Respondents and frequency of response: Employers submit 
applications for permanent labor certification when they wish to employ 
an immigrant alien worker. ETA estimates, based on its operating 
experience that in the upcoming year employers will file approximately 
121,300 applications for alien employment certification and 121,300 
PWDR's'(including an estimated 5,300 applications filed with the INS on 
behalf of aliens who qualify for Schedule A or who are immigrating to 
work as sheepherders) for a total burden of just over 357,835 hours 
(121,300 PWDR's  x  .75 hour + 121,300 applications for permanent labor 
certification  x  2.2 hours = 357,835 hours).
    Additionally, the Department estimates that 61,825 H-1B employers 
will file PWDR's with the SWA's to obtain prevailing wage 
determinations pursuant to provisions of 20 CFR 656.40 that have been 
incorporated into the regulations setting the forth H-1B employers' 
wage obligations at 20 CFR 655.731. This results in an additional 
annual burden of 46,369 hours (61,825  x  .75 hours) or a total annual 
burden of 137,344 hours for the PWDR. The total annual burden for the 
PWDR and the Application for Permanent Labor Certification amounts to 
404,204 hours.
    The Department estimates that the total annual burden for all 
information collections in the proposed rule amounts to 557,429 hours. 
Employers filing applications for permanent alien labor certification 
come from a wide variety of industries. Salaries for employers and/or 
their employees who perform the reporting and recordkeeping functions 
required by this regulation may range from several hundred dollars to 
several hundred thousand dollars where the corporate executive office 
of a large company performs some or all of these functions themselves. 
Absent specific wage data regarding such employers and employees, 
respondent costs were estimated in the proposed rule at $25 an hour. 
Total annual respondent hour costs for all information collections are 
estimated at $13,935,725 (557,429  x  $25.00).
    The Department estimates that the 5000 employers will be required 
to conduct supervised recruitment. The Department estimates that cost 
of an advertisement over all types of publications and geographic 
locations will average $500.00 for a total annual burden of $2,500,000.
    Request for comments: The public is invited to provide comments on 
the revised information collection requirements so that the Department 
of Labor may:
    (1) Evaluate whether the proposed collections of information are 
necessary for the proper performance of the functions of the agency, 
including whether the information will have practical utility;
    (2) Evaluate the accuracy of the agency's estimates of the burdens 
of the

[[Page 30483]]

collections of information, including the validity of the methodology 
and assumptions used;
    (3) Enhance the quality, utility and clarity of the information to 
be collected; and
    (4) Minimize the burden of the collections of information on those 
who are to respond, including through the use of automated, electronic, 
mechanical or other technological collection techniques; e.g., 
permitting electronic submission of responses.
    Written comments should be sent to the Assistant Secretary for 
Employment and Training, U.S. Department of Labor, 200 Constitution 
Avenue, NW., Room C-4318,Washington, DC 20210, Attention: Dale Ziegler, 
Chief, Division of Foreign Labor Certifications. Comments should be 
received by July 5, 2002.
    The collections of information in this notice of proposed 
rulemaking contain revised paperwork requirements currently approved 
under OMB control number 1205-0015 and the revisions have been 
submitted to OMB for review in accordance with the Paperwork Reduction 
Act of 1995 (44 U.S.C. 3507(d)). Copies of the information collection 
request submitted to OMB may be obtained by contacting Ira Mills, 
Departmental Clearance Officer. Telephone: (202) 693-4122 (this is not 
a toll free number), or E-Mail: [email protected].
    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 Parts 655 and 656

    Administrative practice and procedure, Agriculture, Aliens, 
Crewmembers, Employment, Employment and training, Enforcement, Forest 
and forest products, Fraud, Guam, Health professions, Immigration, 
Labor, Longshore and harbor work, Migrant labor, Passports and visas, 
Penalties, Reporting and recordkeeping requirements, Students, 
Unemployment, Wages, Working conditions.

Appendix A to the Preamble--Education and Training Categories by O*Net-
SOC Occupation

    Note: Appendix A will not be codified in the Code of Federal 
Regulations when a final regulation is published.

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    Accordingly, we propose that parts 655 and 656 of Chapter V of 
Title 20 of the Code of Federal Regulations to be amended as 
follows:

PART 655--TEMPORARY EMPLOYMENT OF ALIENS IN THE UNITED STATES

Subpart H--Labor Condition Applications and Requirements for 
Employers Using Nonimmigrants on H-1B Visas.

    1. The authority citation for part 655 continues to read as 
follows:

    Authority: Section 655.0 issued under 8 U.S.C. 1101(a)(15)(H)(i) 
and (ii), 1182(m) and (n), 1184, 1188, and 1288(c) and (d); 29 
U.S.C. 49 et seq.; sec. 3(c)(1), Pub. L. 101-238, 103 Stat. 2099, 
2102 (8 U.S.C. 1182 note); sec. 221(a), Pub. L. 101-649, 104 Stat. 
4978, 5027 (8 U.S.C. 1184 note); sec. 323, Pub. L. 103-206, 107 
Stat. 2149; Title IV, Pub. L. 105-277,112 Stat. 2681; Pub. L. 106-
95, 113 Stat. 1312 (8 U.S.C. 1182 note); and 8 CFR 213.2(h)(4)(i).

    Section 655.00 issued under 8 U.S.C. 1101(a)(15)(H)(ii), 1184, 
and 1188; 29 U.S.C. 49 et seq.; and 8 CFR 214.2(h)(4)(i).
    Subparts A and C issued under 8 U.S.C. 1101(a)(15)(H)(ii)(b) and 
1184; 29 U.S.C. 49 et seq.; and 8 CFR 214.2(h)(4)(i).
    Subpart B issued under 8 U.S.C. 1101(a)(15)(H)(ii)(a), 1184, and 
1188; and 29 U.S.C. 49 et seq.
    Subparts D and E issued under 8 U.S.C. 1101(a)(15)(H)(i)(a), 
1182(m), and 1184; 29 U.S.C. 49 et seq.; and sec. 3(c)(1), Pub. L 
101-238, 103 Stat. 2099, 2103 (8 U.S.C. 1182 note).
    Subparts F and G issued under 8 U.S.C. 1184 and 1288(c); and 29 
U.S.C. 49 et seq.
    Subparts H and I issued under 8 U.S.C. 1101(a)(15)(H)(i)(b), 
1182(n), and 1184; 29 U.S.C. 49 et seq.; sec 303(a)(8), Pub. L. 102-
232, 105 Stat. 1733, 1748 (8 U.S.C. 1182 note); and Title IV, Pub. 
L. 105-277, 112 Stat. 2681.
    Subparts J and K issued under 29 U.S.C. 49 et. seq.; and sec 
221(a), Pub. L. 101-649, 104 Stat. 4978, 5027 (8 U.S.C. 1184 note).
    Subparts L and M issued under 8 U.S.C. 1101(a)(15)(H)(i)(c), 
1182(m), and 1184; 29 U.S.C. 49 et seq.

    2. Amend Sec. 655.731 as follows:
    a. Revise paragraph (a)(2);
    b. Redesignate paragraphs (b)(3)(iii)(B)(2) and (3) as paragraphs 
(b)(3)(iii)(B)(3) and (4), respectively;
    c. Add new paragraph (b)(3)(iii)(B)(2);
    d. Redesignate paragraphs (b)(3)(iii)(C)(2) and (3) as paragraphs 
(b)(3)(iii)(C)(3) and (4), respectively;
    e. Add new paragraph (b)(3)(iii)(C)(2);
    f. Revise paragraph (d)(2); and
    g. Remove paragraph (d)(4).
    The revisions and additions are to read as follows:


Sec. 655.731  What is the first LCA requirement, regarding wages?

* * * * *
    (a) * * *
    (1) * * *
    (2) The prevailing wage for the occupational classification in the 
area of intended employment must be determined as of the time of filing 
the application. The employer shall base the prevailing wage on the 
best information available as of the time of filing the application. 
Where the survey which is the basis for the prevailing wage 
determination contains more than one wage for the occupational 
classification, the employer shall pay the H-1B nonimmigrant(s) at 
least the applicable wage from the survey for the work performed. For 
example, if an H-1B nonimmigrant initially is an inexperienced worker 
who cannot work independently, and later the H-1B nonimmigrant is able 
to work independently, the employer, where applicable, shall pay at 
least the wage for such independent work as set forth in the survey 
that was the basis for the initial prevailing wage determination. 
Except as provided in this section, the employer is not required to use 
any specific methodology to determine the prevailing wage and may 
utilize a State Employment Security Agency (SESA), an independent 
authoritative source, or other legitimate sources of wage data. One of 
the following sources shall be used to establish the prevailing wage:
    (i) A collective bargaining agreement which was negotiated at arms-
length between a union and the employer which contains a wage rate 
applicable to the occupation; or
    (ii) If the job opportunity is in an occupation which is not 
covered by paragraph (a)(2)(i) of this section, the prevailing wage 
shall be the arithmetic mean of the wages of workers similarly 
employed, except that the prevailing wage shall be the median when 
provided by paragraphs (a)(2)(ii)(A), (b)(3)(iii)(B)(2), and 
(b)(3)(iii)(C)(2) of this section. The prevailing wage rate shall be 
based on the best information available. The Department believes that 
the following prevailing wage sources are, in order of priority, the 
most accurate and reliable:
    (A) SESA determination. Upon receipt of a written request for a 
prevailing wage determination, the SESA will determine whether the 
occupation is covered by a collective bargaining agreement which was 
negotiated at arms length, and, if not, determine the arithmetic mean 
of wages of workers similarly employed in the area of intended 
employment. The wage component of the Bureau of Labor Statistics 
Occupational Employment Statistics survey shall be used to determine 
the arithmetic mean, unless the employer provides an acceptable survey. 
If an acceptable employer-provided wage survey provides a median and 
does not provide an arithmetic mean, the median shall be the prevailing 
wage applicable to the employer's job opportunity. In making a 
prevailing wage determination, the SESA will follow Sec. 656.40 of this 
chapter and other administrative guidelines or regulations issued by 
ETA. The SESA shall specify the validity period of the prevailing wage 
determination which in no event shall be for less than 90 days or more 
than 1 year from the date of the determination.
    (1) An employer who chooses to utilize a SESA prevailing wage 
determination shall file the labor condition application within the 
validity period of the prevailing wage as specified on the Prevailing 
Wage Determination Request form (ETA FORM 9088). Any employer desiring 
review of a SESA prevailing wage determination, including judicial 
review, shall follow the appeal procedures at Sec. 656.41 of this 
chapter. Employers which challenge a SESA prevailing wage determination 
under Sec. 656.41 must obtain a ruling prior to filing an LCA. In any 
challenge, the Department and the SESA hall not divulge any employer 
wage data which was collected under the promise of confidentiality. 
Once an employer obtains a prevailing wage determination from the SESA 
and files an LCA supported by that prevailing wage determination, the 
employer is deemed to have accepted the prevailing wage determination 
(as to the amount of the wage) and thereafter may not contest the 
legitimacy of the prevailing wage determination by filing an appeal 
with the Prevailing Wage Panel (see Sec. 656.41 of this chapter), or in 
an investigation or enforcement action.
    (2) If the employer is unable to wait for the to produce the 
requested prevailing wage for the occupation in question, or for the 
Prevailing Wage Panel and/or the Board of Alien Labor Certification 
Appeals to issue a decision, the employer may rely on other legitimate 
sources of available wage information as set forth in paragraphs 
(a)(2)(ii)(B) and (C) of this section. If the employer later discovers, 
upon receipt of the prevailing wage determination from the SESA, that 
the information relied upon produced a wage that was below the 
prevailing wage for the occupation in the area of intended employment 
and the employer was paying below the SESA-determined wage, no wage 
violation will be found if the employer retroactively compensates the 
H-1B nonimmigrant(s)

[[Page 30490]]

for the difference between wage paid and the prevailing wage, within 30 
days of the employer's receipt of the prevailing wage determination.
    (3) In all situations where the employer obtains the prevailing 
wage determination from the SESA, the Department will accept that 
prevailing wage determination as correct (as to the amount of the wage) 
and will not question its validity where the employer has maintained a 
copy of the SESA prevailing wage determination. A complaint alleging 
inaccuracy of a SWA prevailing wage determination, in such cases, will 
not be investigated.
    (B) An independent authoritative source. The employer may use an 
independent authoritative wage source in lieu of a SESA prevailing wage 
determination. The independent authoritative source survey must meet 
all the criteria set forth in paragraph (b)(3)(iii)(B) of this section.
    (C) Another legitimate source of wage information. The employer may 
rely on other legitimate sources of wage data to obtain the prevailing 
wage. The other legitimate source survey must meet all the criteria set 
forth in paragraph (b)(3)(iii)(C) of this section. The employer will be 
required to demonstrate the legitimacy of the wage in the event of an 
investigation.
    (iii) For purposes of this section, ``similarly employed'' means 
``having substantially comparable jobs in the occupational 
classification in the area of intended employment,'' except that if a 
representative sample of employers in the occupational category cannot 
be obtained in the area of intended employment, ``similarly employed'' 
means:
    (A) Having jobs requiring a substantially similar level of skills 
within the area of intended employment; or
    (B) If there are no substantially comparable jobs in the area of 
intended employment, having substantially comparable jobs with 
employers outside of the area of intended employment.
    (iv) A prevailing wage determination for LCA purposes made pursuant 
to this section shall not permit an employer to pay a wage lower than 
that required under any other applicable Federal, state or local law.
    (v) Where a range of wages is paid by the employer to individuals 
in an occupational classification or among individuals with similar 
experience and qualifications for the specific employment in question, 
a range is considered to meet the prevailing wage requirement so long 
as the bottom of the wage range is at least the prevailing wage rate.
    (vi) The employer shall enter the prevailing wage on the LCA in the 
form in which the employer will pay the wage (i.e., either a salary or 
an hourly rate), except that in all cases the prevailing wage must be 
expressed as an hourly wage if the H-1B nonimmigrant will be employed 
part-time. Where an employer obtains a prevailing wage determination 
(from any of the sources identified in paragraph (a)(2)(i) and (ii) of 
this section) that is expressed as an hourly rate, the employer may 
convert this determination to a yearly salary by multiplying the hourly 
rate by 2080. Conversely, where an employer obtains a prevailing wage 
(from any of these sources) that is expressed as a yearly salary, the 
employer may convert this determination to an hourly rate by dividing 
the salary by 2080.
    (vii) In computing the prevailing wage for a job opportunity in an 
occupational classification in an area of intended employment in the 
case of an employee of an institution of higher education or an 
affiliated or related nonprofit entity, a nonprofit research 
organization, or a Governmental research organization as these terms 
are defined in 20 CFR 656.40(e), the prevailing wage level shall only 
take into account employees at such institutions and organizations in 
the area of intended employment.
    (viii) An employer may file more than one LCA for the same 
occupational classification in the same area of employment and, in such 
circumstances, the employer could have H-1B employees in the same 
occupational classification in the same area of employment, brought 
into the U.S. (or accorded H-1B status) based on petitions approved 
pursuant to different LCAs (filed at different times) with different 
prevailing wage determinations. Employers are advised that the 
prevailing wage rate as to any particular H-1B nonimmigrant is 
prescribed by the LCA which supports that nonimmigrant's H-1B petition. 
The employer is required to obtain the prevailing wage at the time that 
the LCA is filed (see paragraph (a)(2) of this section). The LCA is 
valid for the period certified by ETA, and the employer must satisfy 
all the LCA's requirements (including the required wage which 
encompasses both prevailing and actual wage rates) for as long as any 
H-1B nonimmigrants are employed pursuant to that LCA (Sec. 655.750). 
Where new nonimmigrants are employed pursuant to a new LCA, that new 
LCA prescribes the employer's obligations as to those new 
nonimmigrants. The prevailing wage determination on the later/
subsequent LCA does not ``relate back'' to operate as an ``update'' of 
the prevailing wage for the previously-filed LCA for the same 
occupational classification in the same area of employment. However, 
employers are cautioned that the actual wage component to the required 
wage may, as a practical matter, eliminate any wage-payment 
differentiation among H-1B employees based on different prevailing wage 
rates stated in applicable LCAs. Every H-1B nonimmigrant is to be paid 
in accordance with the employer's actual wage system, and thus to 
receive any pay increases which that system provides.
* * * * *
    (b) * * *
    (3) * * *
    (iii) * * *
    (B) * * *
    (2) Reflect the median wage of workers similarly employed in the 
area of intended employment if the survey provides such a median and 
does not provide a weighted average wage of workers similarly employed 
in the area of intended employment;
* * * * *
    (C) * * *
    (2) Reflect the median wage of workers similarly employed in the 
area of intended employment if the survey provides such a median and 
does not provide a weighted average wage of workers similarly employed 
in the area of intended employment;
* * * * *
    (d) * * *
    (2) In the event the Administrator obtains a prevailing wage from 
ETA pursuant to paragraph (d)(1) of this section, and the employer 
desires review, including judicial review, the employer shall challenge 
the ETA prevailing wage only by filing a request for review with the 
Prevailing Wage Panel (PWP) under Sec. 656.41(a) of this chapter within 
21 calendar days of the employers receipt of the prevailing wage 
determination from the Administrator. If the request is timely filed, 
the decision of ETA shall be inoperative until the PWP issues a 
determination on the employer's appeal. If the employer desires review, 
including judicial review, of the decision of the PWP, the employer 
shall make a request for review of the determination by the Board of 
Alien Labor Certification Appeals (BALCA) under Sec. 656.41(e) of this 
chapter within 21 days of the receipt of the decision of the PWP. If a 
request for review is timely filed with the BALCA, the determination by 
the PWP shall be inoperative until the BALCA issues a determination on 
the employer's appeal. In any challenge to the wage determination, 
neither ETA

[[Page 30491]]

nor the SESA shall divulge any employer wage data which was collected 
under the promise of confidentiality.
* * * * *
    3. Part 656 is revised to read as follows:

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

Subpart A--Purpose and Scope of Part 656

Sec.
656.1   Purpose and scope of part 656.
656.2   Description of the Immigration and Nationality Act and of 
the Department of Labor's role thereunder.
656.3   Definitions, for purposes of this part, of terms used in 
this part.
Subpart B--Occupational Labor Certification Determinations
656.5  Schedule A.
Subpart C--Labor Certification Process
656.10   General instructions.
656.14   Fees.
656.15   Applications for labor certification for Schedule A 
occupations.
656.16   Labor certification applications for sheepherders.
656.17   Basic labor certification process.
656.18   Optional special recruitment and documentation procedures 
for college and university teachers.
656.19   Live-in household domestic service workers.
656.20   Audit letters.
656.21   Supervised recruitment.
656.24   Labor certification determinations.
656.25   Board of Alien Labor Certification Appeals review of 
denials of labor certification.
656.26   Board of Alien Labor Consideration Appeals review of 
denials of labor certification.
656.27   Consideration by and decisions of the Board of Alien Labor 
Certification Appeals.
656.30   Validity of and invalidation of labor certifications.
656.31   Labor certifications involving fraud or willful 
misrepresentation.
656.32   Revocation of approved labor certifications.
Subpart D--Determination of Prevailing Wage
656.40   Determination of prevailing wage for labor certification 
purposes.
656.41   ETA Prevailing Wage Panel review of prevailing wage 
determinations.

    Authority: 8 U.S.C. 1182(a)(5)(A), 1189(p)(1); 29 U.S.C. 49 et 
seq.; section 122, Pub. L. 101-649, 109 Stat. 4978; and Title IV, 
Pub. L. 105-277, 112 Stat. 2681.

Subpart A--Purpose and Scope of Part 656


Sec. 656.1  Purpose and scope of part 656.

    (a) Under section 212(a)(5)(A) of the Immigration and Nationality 
Act (INA) (8 U.S.C. 1182(a)(5)(A)) certain aliens may not obtain visas 
for entrance into the United States in order to engage in permanent 
employment unless the Secretary of Labor has first certified to the 
Secretary of State and to the Attorney General that:
    (1) There are not sufficient United States workers, who are able, 
willing, qualified and available at the time of application for a visa 
and admission into the United States and at the place where the alien 
is to perform the work, and
    (2) The employment of the alien will not adversely affect the wages 
and working conditions of United States workers similarly employed.
    (b) The regulations under this part set forth the procedures 
through which such immigrant labor certifications may be applied for, 
and granted or denied.
    (c) Correspondence and questions about the regulations in this part 
should be addressed to: Division of Foreign Labor Certifications, 
Office of Workforce Security, Department of Labor, Washington, DC 
20210.


Sec. 656.2  Description of the Immigration and Nationality Act and of 
the Department of Labor's role thereunder.

    (a)(1) Description of the Act. The Immigration and Nationality Act 
(Act) (8 U.S.C. 1101 et seq.) regulates the admission of aliens into 
the United States. The Act designates the Attorney General and the 
Secretary of State as the principal administrators of its provisions.
    (2) The Immigration and Naturalization Service (INS) performs most 
of the Attorney General's functions under the Act. See 8 CFR 2.1.
    (3) The consular offices of the Department of State throughout the 
world are generally the initial contacts for aliens in foreign 
countries who wish to come to the United States. These offices 
determine the type of visa for which aliens may be eligible, obtain 
visa eligibility documentation, and issue visas.
    (b) Burden of Proof Under the Act. Section 291 of the Act (8 U.S.C. 
1361) provides, in pertinent part, that:

    Whenever any person makes application for a visa or any other 
documentation required for entry, or makes application for 
admission, or otherwise attempts to enter the United States, the 
burden of proof shall be upon such person to establish that he is 
eligible to receive such visa or such document, or is not subject to 
exclusion under any provision of this Act * * *.

    (c)(1) Role of the Department of Labor. The role of the Department 
of Labor under the Act derives from section 212(a)(5)(A) (8 U.S.C. 
1182(a)(5)(A)), which provides that any alien who seeks admission or 
status as an immigrant for the purpose of employment under paragraph 
(2) or (3) of section 203(b) of the Act must be excluded unless the 
Secretary of Labor has first certified to the Secretary of State and to 
the Attorney General that:
    (i) There are not sufficient United States workers, who are able, 
willing, qualified, and available at the time of application for a visa 
and admission to the United States and at the place where the alien is 
to perform such skilled or unskilled labor; and
    (ii) The employment of such alien will not adversely affect the 
wages and working conditions of workers in the United States similarly 
employed.
    (2) This certification is referred to in this part 656 as a ``labor 
certification.''
    (3) We issue labor certifications in two instances: For the 
permanent employment of aliens; and for temporary employment of aliens 
in the United States classified under 8 U.S.C. 1101(a)(15)(H)(ii), 
under the regulations of the Immigration and Naturalization Service at 
8 CFR 214.2(h)(6) and sections 101(a)(15)(H)(ii), 214, and 218 of the 
Act. See 8 U.S.C. 1101(a)(15)(H)(ii), 1184, and 1188. We also 
administer attestation and labor condition application programs for the 
admission and/or work authorization of the following nonimmigrants: 
Specialty occupations and fashion models (H-1B visas), registered 
nurses (H-1C visas), and crewmembers performing longshore work (D 
visas), classified under 8 U.S.C. 1101(a), (15)(H)(i)(b), 
1101(a)(15)(H)(i)(c), and 1101(a)(15)(D), respectively. See also 8 
U.S.C. 1184 (c), (m), and (n), and 1288.


Sec. 656.3  Definitions, for purposes of this part, of terms used in 
this part.

    Act means the Immigration and Nationality Act, as amended, 8 U.S.C. 
1101 et seq.
    Administrative Law Judge means a Department of Labor official 
appointed under 5 U.S.C. 305.
    Agent means a person who is not an employee of an employer, and who 
has been designated in writing to act on behalf of an alien or employer 
in connection with an application for labor certification.
    Applicant means a U.S. worker (see definition of U.S. worker below 
) who is applying for a job opportunity for which an employer has filed 
an

[[Page 30492]]

Application for Permanent Labor Certification (ETA Form 9089).
    Application means an Application for Alien Employment Certification 
form and Prevailing Wage Determination Request form submitted by an 
employer (or its agent) in applying for a labor certification under 
this part.
    Application for Alien Employment Certification Form (ETA Form 9089) 
means the form, which in addition to the Prevailing Wage Determination 
Request form (see definition below), must be submitted by the employer 
to an ETA application processing center to apply for a labor 
certification under this part. The Application for Alien Employment 
Certification form requires the employer to respond to attestations and 
to provide other information necessary to assess the employer's 
compliance with program requirements.
    Area of intended employment means the area within normal commuting 
distance of the place (address) of intended employment. There is no 
rigid measure of distance which constitutes a normal commuting distance 
or normal commuting area because there may be widely varying factual 
circumstances among different areas (e.g., normal commuting distances 
might be 20, 30, or 50 miles). If the place of intended employment is 
within a Metropolitan Statistical Area (MSA) or a 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 MSA's and PMSA's are not 
controlling in the identification of 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 (e.g., near the border 
of) the MSA or PMSA (or CMSA).
    Attorney means any person who is a member in good standing of the 
bar of the highest court of any State, Possession, Territory, or 
Commonwealth of the United States, or the District of Columbia, and who 
is not under any order of any court or of the Board of Immigration 
Appeals suspending, enjoining, restraining, disbarring, or otherwise 
restricting him or her in the practice of law.
    Attorney General means the chief official of the U.S. Department of 
Justice or the designee of the Attorney General.
    Board of Alien Labor Certification Appeals (BALCA or Board) means 
the permanent Board established by this part, chaired by the Chief 
Administrative Law Judge, and consisting of Administrative Law Judges 
assigned to the Department of Labor and designated by the Chief 
Administrative Law Judge to be members of the Board of Alien Labor 
Certification Appeals. The Board of Alien Labor Certification Appeals 
is located in Washington, DC, and reviews and decides appeals in 
Washington, DC.
    Certifying Officer means a Department of Labor official who makes 
determinations about whether or not to grant applications for labor 
certifications.
    Chief Administrative Law Judge means the chief official of the 
Office of Administrative Law Judges of the Department of Labor.
    Division of Foreign Labor Certifications means the organizational 
component within the Employment and Training Administration (defined 
below) which provides national leadership and policy guidance and 
develops regulations and procedures to carry out the responsibilities 
of the Secretary of Labor under the Immigration and Nationality Act, as 
amended, concerning alien workers seeking admission to the United 
States in order to work under to Section 212(a)(5)(A) of the 
Immigration And Nationality Act, as amended.
    Employment means: (1) permanent, full-time work by an employee for 
an employer other than oneself. For purposes of this definition, an 
investor is not an employee. In the event of an audit, the employer 
must be prepared to document the permanent and full-time nature of the 
position by furnishing position descriptions and payroll records for 
the job opportunity involved in the Application for Alien Employment 
Certification.
    (2) Job opportunities consisting solely of job duties that will be 
performed totally outside the United States, its territories or 
possessions cannot be the subject of a permanent application for alien 
employment certification.
    Employment and Training Administration (ETA) means the agency 
within the Department of Labor (DOL) which includes the Division of 
Foreign Labor Certifications.
    Employer means: (1) A person, association, firm, or a corporation 
which currently has a location within the United States to which U.S. 
workers may be referred for employment, and which proposes to employ a 
full-time worker at a place within the United States or the authorized 
representative of such a person, association, firm, or corporation. For 
purposes of this definition an ``authorized representative'' means an 
employee of the employer whose position or legal status authorizes the 
employee to act for the employer in labor certification matters.
    (2) Persons who are temporarily in the United States, such as 
foreign diplomats, intracompany transferees, students, exchange 
visitors, and representatives of foreign information media cannot be 
employers for the purpose of obtaining a labor certification for 
permanent employment.
    (3) Job opportunities consisting solely of job duties that will be 
performed totally outside the United States, its territories or 
possessions cannot be the subject of a permanent application for alien 
employment certification.
    Immigration and Naturalization Service (INS) means the agency 
within the U.S. Department of Justice which administers that 
Department's principal functions under the Act.
    Immigration Officer means an official of the Immigration and 
Naturalization Service (INS) who handles applications for labor 
certifications under this part.
    INS, see ``Immigration and Naturalization Service.''
    Job opportunity means a job opening for employment at a place in 
the United States to which U.S. workers can be referred.
    Labor certification means the certification to the Secretary of 
State and to the Attorney General of the determination by the Secretary 
of Labor under section 212(a)(5)(A) of the Immigration and Nationality 
Act (8 U.S.C. 1182(a)(5)(A)):
    (1) That there are not sufficient U.S. workers who are able, 
willing, qualified, and available at the time of an alien's application 
for a visa and admission to the United States and at the place where 
the alien is to perform the work; and
    (2) That the employment of the alien will not adversely affect the 
wages and working conditions of similarly employed U.S. workers.
    Non-professional occupation means any occupation for which the 
attainment of a bachelor's or higher degree is not a usual requirement 
for the occupation.
    Non-profit or tax exempt organization for the purposes of 
Sec. 656.40 means an organization which:
    (1) Is defined as a tax exempt organization under the Internal 
Revenue Code of 1986, section 501(c)(3), (c)(4), or (c)(6) (26 U.S.C. 
501(c)(3), (c)(4) or (c)(6)), and
    (2) Has been approved as a tax exempt organization for research or 
educational purposes by the Internal Revenue Service.

[[Page 30493]]

    O*Net means the system developed by the Department of Labor, 
Employment and Training Administration, to provide to the general 
public information on skills, abilities, knowledge, work activities, 
interests and specific vocational preparation levels associated with 
occupations. O*Net is based on the Standard Occupational Classification 
system. Further information about O*Net can be found at http://online.onetcenter.org/.
    Prevailing Wage Determination means the prevailing wage entered on 
the Prevailing Wage Determination Request form by the State Employment 
Security Agency.
    Prevailing Wage Determination Request (PWDR) Form (ETA Form 9088) 
means the form that must be submitted to the State Employment Security 
Agency to obtain a prevailing wage determination.
    Professional occupation means an occupation for which the 
attainment of a bachelor's or higher degree is a usual education 
requirement for the occupation. A beneficiary of an application for 
permanent alien employment certification involving a professional 
occupation need not have a bachelor's or higher degree to qualify for 
the professional occupation. However, if the employer is willing to 
accept work experience in lieu of a baccalaureate or higher degree such 
work experience must be attainable in the U.S. labor market and must be 
stated on the PWDR form. If the employer is willing to accept an 
equivalent foreign degree, it must be clearly stated on the PWDR form.
    Regional Director, Employment and Training Administration (RD) 
means the chief official of the Employment and Training Administration 
(ETA) in a Department of Labor regional office.
    Schedule A means the list of occupations set forth in Sec. 656.5 
for which we have determined that there are not sufficient United 
States workers who are able, willing, qualified and available, and that 
the employment of aliens in such occupations will not adversely affect 
the wages and working conditions of United States workers similarly 
employed.
    Secretary means the Secretary of Labor, the chief official of the 
U.S. Department of Labor, or the Secretary's designee.
    Secretary of State means the chief official of the U.S. Department 
of State or the Secretary of State's designee.
    Specific Vocational Preparation (SVP) means 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, 30 days is approximately 1 month of lapsed time and 
not six 5-day work weeks, and 3 months refers to 3 calendar months and 
not 90 work days. The various levels of specific vocational preparation 
are provided below.

Level and Time

1--Short demonstration.
2--Anything beyond short demonstration up to and including 30 days.
3--Over 30 days up to and including 3 months.
4--Over 3 months up to and including 6 months.
5--Over 6 months up to and including 1 year.
6--Over 1 year up to and including 2 years.
7--Over 2 years up to and including 4 years.
8--Over 4 years up to and including 10 years.
9--Over 10 years.
    State Employment Security Agency (SWA) means the state agency 
which, under the Wagner-Peyser Act, receives funds to provide 
prevailing wage determinations to employers, and/or administers the 
public labor exchange delivered through the state's One-Stop delivery 
system in accordance with the Wagner-Peyser Act.
    United States, when used in a geographic sense, means the fifty 
States, the District of Columbia, Puerto Rico, the U.S. Virgin Islands, 
and Guam.
    United States Worker means any worker who:
    (1) Is a U.S. citizen;
    (2) Is a U.S. national;
    (3) Is lawfully admitted for permanent residence;
    (4) Is granted the status of an alien lawfully admitted for 
temporary residence under 8 U.S.C. 1160(a), 1161(a), or 1255a(a)(1);
    (5) Is admitted as a refugee under 8 U.S.C. 1157; or
    (6) Is granted asylum under 8 U.S.C. 1158.

Subpart B--Occupational Labor Certification Determinations


Sec. 656.5  Schedule A.

    We have determined that there are not sufficient United States 
workers who are able, willing, qualified, and available for the 
occupations listed below on Schedule A and that the wages and working 
conditions of United States workers similarly employed will not be 
adversely affected by the employment of aliens in Schedule A 
occupations. An alien seeking a labor certification for an occupation 
listed on Schedule A may apply for that labor certification under 
Sec. 656.19

Schedule A

    (a) Group I:
    (1) Persons who will be employed as physical therapists, and who 
possess all the qualifications necessary to take the physical therapist 
licensing examination in the State in which they propose to practice 
physical therapy.
    (2) Aliens who will be employed as professional nurses; and (i) who 
have passed the Commission on Graduates of Foreign Nursing Schools 
(CGFNS) Examination; or (ii) who hold a permanent, full and 
unrestricted license to practice professional nursing in the State of 
intended employment.
    (3) Definitions of Group I occupations:
    (i) Physical therapist means a person who applies the art and 
science of physical therapy to the treatment of patients with 
disabilities, disorders and injuries to relieve pain, develop or 
restore function, and maintain performance, using physical means, such 
as exercise, massage, heat, water, light, and electricity, as 
prescribed by a physician (or surgeon).
    (ii) Professional nurse means a person who applies the art and 
science of nursing which reflects comprehension of principles derived 
from the physical, biological and behavioral sciences. Professional 
nursing generally includes making clinical judgments involving the 
observation, care and counsel of persons requiring nursing care; 
administering of medicines and treatments prescribed by the physician 
or dentist; and participation in the activities for the promotion of 
health and prevention of illness in others. A program of study for 
professional nurses generally includes theory and practice in clinical 
areas such as obstetrics, surgery, pediatrics, psychiatry, and 
medicine.
    (b) Group II:
    (1) Sciences or arts (except performing arts). Aliens (except for 
aliens in the performing arts) of exceptional ability in the sciences 
or arts including college and university teachers of exceptional 
ability who have been practicing their science or art during the year 
prior to application and who intend to practice the same science or art 
in the United States. For purposes of this group, the term ``science or 
art'' means any field of knowledge and/or skill with respect to which 
colleges and universities commonly offer specialized courses leading to 
a degree in the knowledge and/or skill. An alien, however, need not 
have studied at a college or

[[Page 30494]]

university in order to qualify for the Group II occupation.
    (2) Performing arts. Aliens of exceptional ability in the 
performing arts whose work during the past 12 months did require and 
whose intended work in the United States will require exceptional 
ability.

Subpart C--Labor Certification Process


Sec. 656.10  General instructions.

    (a) Filing of Applications. A request for a labor certification on 
behalf of any alien who is required by the Act to be a beneficiary of a 
labor certification in order to obtain permanent resident status in the 
United States may be filed as follows:
    (1) Except as provided in paragraphs (a)(2) and (3) of this 
section, an employer seeking a labor certification must file under this 
section and Sec. 656.17.
    (2) An employer seeking a labor certification for a college or 
university teacher must apply for a labor certification under this 
section and may also choose to file under either Sec. 656.17 or 
Sec. 656.18.
    (3) An employer seeking labor certification for an occupation 
listed on Schedule A may apply for a labor certification under this 
section and Sec. 656.15.
    (4) An employer seeking labor certification for a sheepherder must 
apply for a labor certification under this section and may also choose 
to file under either Sec. 656.16 or Sec. 656.17.
    (b) Representation. (1) Employers may have agents or attorneys 
represent them throughout the labor certification process. If an 
employer intends to be represented by an agent or attorney, the 
employer must sign the statement set forth on the Application for Alien 
Employment Certification form: That the attorney or agent is 
representing the employer and that the employer takes full 
responsibility for the accuracy of any representations made by the 
attorney or agent. Whenever, under this part, any notice or other 
document is required to be sent to the employer, the document must be 
sent to the attorney or agent who has been authorized to represent the 
employer on the Application for Alien Employment Certification form.
    (2)(i) It is contrary to the best interests of U.S. workers to have 
the alien and/or agents or attorneys for the alien participate in 
interviewing or considering U.S. workers for the job offered the alien. 
As the beneficiary of a labor certification application, the alien 
cannot represent the best interests of U.S. workers in the job 
opportunity. The alien's agent and/or attorney cannot represent the 
alien effectively and at the same time truly be seeking U.S. workers 
for the job opportunity. Therefore, the alien and/or the alien's agent 
and/or attorney may not interview or consider U.S. workers for the job 
offered to the alien, unless the agent and/or attorney is the 
employer's representative, as described in paragraph (b)(2)(ii) of this 
section.
    (ii) The employer's representative who interviews or considers U.S. 
workers for the job offered to the alien must be the person who 
normally interviews or considers, on behalf of the employer, applicants 
for job opportunities such as that offered the alien, but which do not 
involve labor certifications.
    (3) No person under suspension or disbarment from practice before 
the United States Department of Justice's Executive Office for 
Immigration Review or the INS under 8 CFR 292.3 is permitted to act as 
an agent, representative, or attorney for an employer and/or alien 
under this part.
    (c) Attestations. The employer must attest to the conditions listed 
below on the Application for Alien Employment Certification form under 
penalty of perjury under 28 U.S.C. 1746. Failure to attest to any of 
the conditions listed below results in a denial of the application:
    (1) The wage offered equals or exceeds the prevailing wage 
determined under Sec. 656.40, and the employer will pay the prevailing 
wage to the alien from the time a petition filed to adjust status under 
section 245 of the Act is approved, or from the time the alien enters 
the United States to take up the certified employment after the 
issuance of a visa by a Consular Officer;
    (2) The wage offered is not based on commissions, bonuses or other 
incentives, unless the employer guarantees a wage paid on a weekly, bi-
weekly, or monthly basis;
    (3) The job opportunity does not involve unlawful discrimination by 
race, creed, color, national origin, age, sex, religion, handicap, or 
citizenship;
    (4) The employer's job opportunity is not:
    (i) Vacant because the former occupant is on strike or is being 
locked out in the course of a labor dispute involving a work stoppage; 
or
    (ii) At issue in a labor dispute involving a work stoppage;
    (5) The employer's job opportunity's terms, conditions and 
occupational environment are not contrary to Federal, State or local 
law; and
    (6) The job opportunity has been and is clearly open to any 
qualified U.S. worker.
    (d) Notice. (1) In applications filed under Secs. 656.15 (Schedule 
A), 656.16 (Sheepherders), 656.17 (Basic Process), 656.18 (College and 
University Teachers), and 656.21 (Supervised Recruitment), the employer 
must give notice of the filing of the Application for Alien Employment 
Certification and be able to document that notice was provided, if 
requested by the Certifying Officer as follows:
    (i) 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 location(s) in the area 
of intended employment. Documentation may consist of a copy of the 
letter and a copy of the Application for Alien Employment Certification 
form that was sent to the bargaining representative.
    (ii) If there is no such bargaining representative, by posted 
notice to the employer's employees at the facility or location of the 
employment. The notice must be posted for at least 10 consecutive 
business days. The notice must be clearly visible and unobstructed 
while posted and must be posted in conspicuous places, where the 
employer's U.S. workers can readily read the posted notice on their way 
to or from their place of employment. Appropriate locations for posting 
notices of the job opportunity include locations in the immediate 
vicinity of the wage and hour notices required by 20 CFR 516.4 or 
occupational safety and health notices required by 20 CFR 1903.2(a). In 
addition the employer must publish the posting in any and all in-house 
media, whether electronic or printed, in accordance with the normal 
procedures used for the recruitment of other positions in the 
employer's organization. The documentation requirement may be satisfied 
by providing a copy of the posted notice and stating where it was 
posted, and by providing copies of the in-house media whether 
electronic or published that were used to distribute notice of the 
application in accordance with the procedures used for other positions 
recruitment within the employer's organization.
    (2) In the case of a private household, notice is required under 
this paragraph (d) only if the household employs one or more U.S. 
workers at the time the application for labor certification is filed. 
The documentation requirement may be satisfied by providing a copy of 
the posted notice to the Certifying Officer.

[[Page 30495]]

    (3) Any notice of the filing of an Application for Alien Employment 
Certification must:
    (i) State that the notice is being provided as a result of the 
filing of an application for permanent alien labor certification for 
the relevant job opportunity;
    (ii) State that any person may provide documentary evidence bearing 
on the application to the Certifying Officer of the Department of 
Labor; and
    (iii) Provide the address of the appropriate Certifying Officer.
    (4) If an application is filed under Sec. 656.17, the notice must 
be provided between 45 and 180 days before filing the application, must 
contain the information required for advertisements by 
Sec. 656.17(e)(1) through (e)(7), and must contain the information 
required by paragraph (d)(3) of this section.
    (5) If an application is filed on behalf of a college and 
university teacher selected in a competitive selection and recruitment 
process, as provided by Sec. 656.18, the notice must include the 
information required for advertisements by Sec. 656.18(b)(2), and must 
include the requirements of paragraph (d)(3) of this section.
    (6) If an application is filed under the Schedule A procedures at 
Sec. 656.15, or the procedures for sheepherders at Sec. 656.16, the 
notice must contain a description of the job and rate of pay, and must 
meet the requirements of paragraphs (d)(3)(i) and (ii) of this section.
    (e)(1)(i) Submission of evidence. Any person may submit to the 
Certifying Officer documentary evidence bearing on an application for 
permanent alien labor certification filed under the basic labor 
certification process at Sec. 656.17 or an application involving a 
college and university teacher that may be selected in a competitive 
recruitment and selection process under Sec. 656.18.
    (ii) Documentary evidence submitted under paragraph (e)(1)(i) of 
this section may include information on available workers, information 
on wages and working conditions, and information on the employer's 
failure to meet the terms and conditions for the employment of alien 
workers and co-workers. The Certifying Officer must consider this 
information in making his or her determination.
    (2)(i) Any person may submit to the appropriate INS office 
documentary evidence of fraud or willful misrepresentation in a 
Schedule A application filed under Sec. 656.15 sheepherder application 
filed under Sec. 656.16.
    (ii) Documentary evidence submitted under paragraph (e)(2)(i) of 
this section is limited to information relating to possible fraud or 
willful misrepresentation. The INS may consider this information under 
Sec. 656.31.


Sec. 656.14  Fees.

    (a) Payment of processing fee. Employers must submit with their 
application a check or money order drawn on a financial institution in 
the United States in the amount of $XXXX, payable in U.S. Currency. A 
charge of $30.00 will be imposed if a check in payment of the fee is 
not honored by the financial institution on which it is drawn.
    (1) Checks for applications filed with the U.S. Department of Labor 
under Secs. 656.17 and 18 must be made payable to the U.S. Department 
of Labor.
    (2) Checks for applications filed with INS under Secs. 656.15 and 
17, must be made payable to the Immigration and Naturalization Service.
    (b) Returned (``insufficient funds'') checks. (1) Existence of any 
outstanding ``insufficient funds'' check that was submitted for 
processing an application or for payment of the $30.00 charge imposed 
for a check submitted in payment of the charge imposed for submission 
of a check that was not honored by the financial institution on which 
it was drawn, is grounds for returning any application for alien 
employment certification to the employer as unacceptable for 
processing.
    (2) Receipt of any ``insufficient funds'' check while the 
application is being processed is grounds for denying the application.
    (3) Receipt of any ``insufficient funds'' checks after an 
application has been certified results in automatic revocation of the 
certification, if payment in U.S. funds has not been received within 14 
calendar days of date of the notification to the employer of the 
existence of an ``insufficient funds'' check.
    (c) Returned applications. If an application is returned to the 
employer because it is incomplete, the employer may request a refund of 
the fee or resubmit the application.


Sec. 656.15  Applications for labor certification for Schedule A 
occupations.

    (a) Filing application. An employer must apply for a labor 
certification for a Schedule A occupation by filing an application in 
duplicate with the appropriate Immigration and Naturalization Service 
office, not with the Department of Labor or a State Workforce Agency 
office.
    (b) General documentation requirements. The Application for Alien 
Employment Certification form must include:
    (1) An Application for Alien Employment Certification form and a 
completed PWDR form endorsed by the SWA.
    (2) Evidence that notice of filing the application for Alien 
Employment Certification was provided to the bargaining representative 
or the employer's employees as prescribed in Sec. 656.10(f)(3).
    (c) Group I documentation. An employer seeking labor certification 
under Group I of Schedule A must file, as part of its labor 
certification application, documentary evidence of the following:
    (1) An employer seeking Schedule A labor certification for an alien 
to be employed as a physical therapist (Sec. 656.5(a)(1)) must file as 
part of its labor certification application a letter or statement 
signed by an authorized State physical therapy licensing official in 
the State of intended employment, stating that the alien is qualified 
to take that State's written licensing examination for physical 
therapists. Application for certification of permanent employment as a 
physical therapist may be made only under this Sec. 656.15 and not 
under Sec. 656.17.
    (2) An employer seeking a Schedule A labor certification as a 
professional nurse (Sec. 656.5(a)(2)) must file as part of its labor 
certification application documentation that the alien has passed the 
Commission on Graduates of Foreign Nursing Schools (CGFN) Examination; 
or that the alien holds a full and unrestricted (permanent) license to 
practice nursing in the State of intended employment. Application for 
certification of employment as a professional nurse may be made only 
under this Sec. 656.15 (c), and not under Sec. 656.17.
    (d) Group II documentation. An employer seeking Schedule A labor 
certification under Group II of Schedule A must file as part of its 
labor certification application, documentary evidence of the following:
    (1) An employer seeking labor certification on behalf of an alien 
to be employed as an alien of exceptional ability in the sciences or 
arts (excluding those in the performing arts) must file documentary 
evidence showing the widespread acclaim and international recognition 
accorded the alien by recognized experts in the alien's field; and 
documentation showing that the alien's work in that field during the 
past year did, and the alien's intended work in the United States will, 
require exceptional ability. In addition, the employer must file 
documentation

[[Page 30496]]

about the alien from at least two of the following seven groups:
    (i) Documentation of the alien's receipt of internationally 
recognized prizes or awards for excellence in the field for which 
certification is sought;
    (ii) Documentation of the alien's membership in international 
associations, in the field for which certification is sought, which 
require outstanding achievement of their members, as judged by 
recognized international experts in their disciplines or fields;
    (iii) Published material in professional publications about the 
alien, about the alien's work in the field for which certification is 
sought, which shall include the title, date, and author of such 
published material;
    (iv) Evidence of the alien's participation on a panel, or 
individually, as a judge of the work of others in the same or in an 
allied field of specialization to that for which certification is 
sought;
    (v) Evidence of the alien's original scientific or scholarly 
research contributions of major significance in the field for which 
certification is sought;
    (vi) Evidence of the alien's authorship of published scientific or 
scholarly articles in the field for which certification is sought, in 
international professional journals or professional journals with an 
international circulation; or
    (vii) Evidence of the display of the alien's work, in the field for 
which certification is sought, at artistic exhibitions in more than one 
country.
    (2) An employer seeking labor certification on behalf of an alien 
of exceptional ability in the performing arts must file documentary 
evidence that the alien's work experience during the past twelve months 
did require, and the aliens' intended work in the United States will 
require, exceptional ability; and must submit documentation to show 
this exceptional ability, such as:
    (i) Documentation attesting to the current widespread acclaim and 
international recognition accorded to the alien, and receipt of 
internationally recognized prizes or awards for excellence;
    (ii) Published material by or about the alien, such as critical 
reviews or articles in major newspapers, periodicals, and/or trade 
journals (the title, date, and author of such material shall be 
indicated);
    (iii) Documentary evidence of earnings commensurate with the 
claimed level of ability;
    (iv) Playbills and star billings;
    (v) Documents attesting to the outstanding reputation of theaters, 
concert halls, night clubs, and other establishments in which the alien 
has appeared or is scheduled to appear; and/or
    (vi) Documents attesting to the outstanding reputation of theaters 
or repertory companies, ballet troupes, orchestras, or other 
organizations in which or with which the alien has performed during the 
past year in a leading or starring capacity.
    (e) Determination. An Immigration Officer determines whether the 
employer and alien have met the applicable requirements of Sec. 656.10 
and of Schedule A (Sec. 656.5); reviews the application; and determines 
whether or not the alien is qualified for and intends to pursue the 
Schedule A occupation. The Schedule A determination of INS is 
conclusive and final. The employer, therefore, may not appeal from any 
such determination under the review procedures at Sec. 656.26.
    (f) Department of Labor copy. If the alien qualifies for the 
occupation, the Immigration Officer must indicate the occupation on the 
Application for Alien Employment Certification form. The Immigration 
Officer then must promptly forward a copy of the Application for Alien 
Employment Certification form, without attachments, to the Director, 
indicating thereon the occupation, the Immigration Officer who made the 
Schedule A determination, and the date of the determination (see 
Sec. 656.30 for the significance of this date).
    (g) Refiling after denial. If an application for a Schedule A 
occupation is denied, the employer, except where the occupation is as a 
physical therapist or a professional nurse, may at any time file for a 
labor certification on the alien beneficiary's behalf under 
Sec. 656.17. Labor certifications for professional nurses and for 
physical therapists may be considered only under Sec. 656.15.


Sec. 656.16  Labor certification applications for sheepherders.

    (a) Filing requirements and required documentation. (1) An employer 
may apply for a labor certification to employ an alien (who has been 
employed legally as a nonimmigrant sheepherder in the United States for 
at least 33 of the preceding 36 months) as a sheepherder by filing an 
Application for Alien Employment Certification form and a completed 
PWDR form endorsed by the SWA, directly with a District Office of INS, 
not with an office of DOL.
    (2) A signed letter or letters from each U.S. employers who has 
employed the alien as a sheepherder during the immediately preceding 36 
months, attesting that the alien has been employed in the United States 
lawfully and continuously as a sheepherder for at least 33 of the 
immediately preceding 36 months must be filed with the application.
    (b) Determination. An Immigration Officer reviews the application 
and the letters attesting to the alien's previous employment as a 
sheepherder in the United States, and determines whether or not the 
alien and the employer(s) have met the requirements of this section.
    (1) The determination of the Immigration Officer under paragraph 
(b) of this section is conclusive and final. The employer(s) and the 
alien, therefore, may not make use of the review procedures set forth 
at Secs. 656.26 and 656.27 to appeal such a determination.
    (2) If the alien and the employer(s) have met the requirements of 
this section, the Immigration Officer must indicate on the Application 
for Alien Employment form the occupation, the immigration office which 
made the determination, and the date of the determination (see 
Sec. 656.30 for the significance of this date). The Immigration Officer 
then forwards promptly to the Division of Foreign Labor Certifications 
copies of the Application for Alien Employment Certification form, 
without the attachments.
    (c) Alternative filing. If an application for a sheepherder does 
not meet the requirements of this section, the application may be filed 
under Sec. 656.17.


Sec. 656.17  Basic labor certification process.

    (a) Filing applications. Except as otherwise provided by 
Secs. 656.15, 656.16 and 656.18, an employer who desires to apply for a 
labor certification on behalf of an alien must file, signed by hand, a 
completed Department of Labor Application for Alien Employment 
Certification form, a completed PWDR form that has been endorsed by the 
SWA serving the area where the employer proposes the alien will be 
employed, and the processing fee of $XXXX in accordance with 
Sec. 656.14. The application must be filed with the DOL servicing 
office. Supporting documentation that may be requested by the 
Certifying Officer in an audit letter should not be filed with the 
application, but the employer must be prepared to furnish required 
supporting documentation if its application is selected for audit.
    (b) Processing. (1) Applications are screened and found to be 
either incomplete, or are certified, denied, or selected for audit. 
Applications that

[[Page 30497]]

cannot be accepted for processing because certain information that was 
requested by the application form was not provided are returned to the 
employers.
    (2) Employers will be notified if their applications have been 
selected for audit by the issuance of an audit letter under 
Sec. 656.20.
    (3) Applications may be selected for audit in accordance with 
predetermined selection criteria or may be randomly selected.
    (c) Filing Date. (1) Applications accepted for processing shall be 
date stamped.
    (2) Applications not accepted for filing and returned to employers 
shall not be date stamped.
    (3) Employers that filed applications under the regulations that 
were in effect prior to ______, 2002, may refile such cases under the 
current regulations without loss of the filing date by:
    (i) Submitting an application on behalf of an identical job 
opportunity filed under the regulations that were in effect prior to 
______, 2002, if the employer has complied with all of the filing and 
recruiting requirements of the current regulations; and
    (ii) Identifying and withdrawing the application involving the 
identical job opportunity pending under the regulations effective prior 
to ______, 2002.
    (d) Required prefiling recruitment. Except for labor certification 
applications involving college or university teachers selected to by a 
competitive recruitment and selection process (see Sec. 656.18), 
Schedule A occupations (see Secs. 656.5 and 656.15), and sheepherders 
(see Sec. 656.16), an employer must attest, depending on whether a 
professional or nonprofessional occupation is involved in the 
application, to have conducted the following recruitment prior to 
filing the application:
    (1) Professional Occupations. If the application is for a 
professional occupation, the employer must conduct the six recruitment 
steps within 6 months of filing the application for alien employment 
certification. The employer must maintain documentation of the 
recruitment and be prepared to document such recruitment in the event 
of an audit.
    (i) Mandatory steps. Two of the steps are mandatory for all 
applications involving professional occupations, except applications 
for college or university teachers selected in a competitive selection 
and recruitment process as provided in Sec. 656.16. The mandatory 
recruitment steps must be conducted at least 30 days, but no more than 
180 days, before the filing of the application.
    (A) Job order. Placement of a job with the SWA serving the area of 
intended employment for a period of 30 days. The start and end dates of 
the job order entered on the application serve as documentation of this 
step.
    (B) Advertisements in newspaper or professional journals. (1) 
Placing two advertisements in the Sunday edition of the newspaper of 
general circulation most appropriate to the occupation and the workers 
likely to apply for the job opportunity in the area of intended 
employment. There must be a minimum of three consecutive intervening 
Sundays between publication of the two advertisements and they must 
satisfy the requirements of paragraph (f)(1) of this section. 
Documentation of this step can be satisfied by furnishing copies of the 
tear sheets of the newspaper pages in which the advertisements appeared 
or proof of publication furnished by the newspaper.
    (2) If the job involved in the application requires experience and 
an advanced degree, the employer must, in lieu of one of the Sunday 
advertisements, place an advertisement in the professional journal most 
likely to bring responses from able, willing, qualified and available 
U.S. workers. Documentation of this step can be satisfied by providing 
a copy of the page in which the advertisement appeared.
    (ii) Additional recruitment steps. The employer must select three 
additional recruitment steps from the alternatives listed below. Only 
one of the additional steps may consist solely of activity that took 
place within 30 days of the filing of the application. None of the 
steps may have taken place more than 180 days prior to filing the 
application.
    (A) Job fairs. Recruitment at job fairs for the occupation involved 
in the application which can be documented by brochures advertising the 
fair and newspaper advertisements in which the employer is named as a 
participant in the job fair;
    (B) Employer's web site. The use of the employer's web site as a 
recruitment medium for the occupation involved in the application can 
be documented by providing dated copies of pages from the site which 
advertise the occupation involved in the application.
    (C) Job search web site other than employer's. The use of a job 
search web site other than the employer's can be documented by 
providing dated copies of pages from one or more web site(s) which 
advertises the occupation involved in the application. Copies of web 
pages generated in conjunction with the newspaper advertisements 
required by paragraph (d)(1)(i)(B) of this section cannot serve as 
document of the use of a web site other than the employer's.
    (D) On-campus recruiting. The employer's on-campus recruiting can 
be documented by providing copies of the notification issued or posted 
by the college's or university's placement office naming the employer 
and the date it will be conducting interviews for employment in the 
occupation.
    (E) Trade or professional organizations. The use of professional or 
trade organizations as a recruitment source can be documented by 
providing copies of pages of newsletters or trade journals containing 
advertisements for the occupation involved in the application for alien 
employment certification.
    (F) Private employment firms. The use of private employment firms 
or placement agencies can be documented by providing documentation 
sufficient to demonstrate that recruitment has been conducted by a 
private firm for the occupation for which certification is sought. For 
example, documentation might consist of copies of contracts between the 
employer and the private employment firm and copies of advertisements 
placed by the private employment firm for the occupation involved in 
the application.
    (2) Non-professional occupations. If the application is for a non-
professional occupation, the employer must at a minimum, conduct two of 
the following steps within 6 months of filing the occupation. The steps 
must be conducted at least 30 days but no more that 180 days before the 
filing of the application.
    (i) Job Order. Placing a job order with the SWA serving the area of 
intended employment for a period of 30 days. The start and end dates of 
the job order entered on the application entered on the application 
serve as documentation of this step.
    (ii) Newspaper advertisements. Placing of two advertisement in the 
Sunday edition of the newspaper of general circulation most appropriate 
to the occupation and the workers likely to apply for the job 
opportunity in the area of intended employment. There must be a minimum 
of three consecutive intervening Sundays between publication of the two 
advertisements and the advertisements must satisfy the requirements of 
paragraph (f)(1) of this section. Placing the newspaper advertisements 
can be documented in the same way as provided in paragraph (c)(1)(i)(B) 
for professional occupations.
    (e) Advertising Requirements. Advertisements placed in Sunday

[[Page 30498]]

editions of newspapers of general circulation or in professional 
journals before filing the Application for Alien Employment 
Certification must:
    (1) Name the employer;
    (2) Direct applicants to report or send resumes, as appropriate for 
the occupation, to the employer;
    (3) Provide a description of the vacancy specific enough to apprise 
the U.S. workers of the job opportunity for which certification is 
sought;
    (4) Describe the geographic area involved in the application with 
enough specificity to apprise applicants of any travel requirements and 
where applicants will likely have to reside to perform the job 
opportunity;
    (5) State the rate of pay which must equal or exceed the prevailing 
wage entered on the PWDR form by the SWA;
    (6) Not contain any job requirements which exceed the job 
requirements listed on the PWDR form; and
    (7) Offer wages, terms, and conditions of employment which are no 
less favorable than those offered to the alien.
    (f) Recruitment report. (1) The employer must prepare a summary 
report signed by the employer or the employer's representative 
described in Sec. 656.10(b)(2)(ii) describing the recruitment steps 
undertaken and the results achieved, including the number of U.S. 
workers who applied for the job opportunity, the number of hires, and, 
if applicable, the number of U.S. workers rejected, summarized by the 
lawful job related reasons for such rejections. The Certifying Officer, 
after reviewing the employer's recruitment report, may request the 
resumes or applications of the U.S. workers sorted by the reasons they 
were rejected.
    (2) Rejecting U.S. workers for lacking skills necessary to perform 
the duties involved in the occupation, where the U.S. workers are 
capable of acquiring the skills during a reasonable period of on-the-
job training is not a lawful job-related reason for rejection of the 
U.S. workers. For the purpose of paragraph (e)(2) of this section, a 
U.S. worker is able and qualified for the job opportunity if the worker 
can acquire the skills necessary to perform the duties involved in the 
occupation during a reasonable period of on-the-job training.
    (g) Job Requirements. (1) The job opportunity's requirements must 
not exceed the Specific Vocational Preparation level assigned to the 
occupation as shown in the O*Net Job Zones.
    (2) Requirements other than those relating to the number of months 
or years of experience in the occupation or the number of months or 
years of education or training in the occupation cannot be used unless 
justified in the following circumstances:
    (i) The employer employed a U.S. worker to perform the job 
opportunity with the special requirements within 2 years of filing the 
application. This could be documented by furnishing the name of the 
former employee and one or more of the following: Job description, 
resume, letter from previous employee and/or previous recruitment 
documentation.
    (ii) The other requirements are normal to the occupation for a 
person to perform the basic job duties and are routinely required by 
other employers in the industry. Acceptable examples, depending on the 
occupation, include but are not limited to: Professional trade or 
business licenses, specified typing speed, and ability to lift a 
minimum number of pounds. Acceptable documentation that other employers 
in the industry routinely have such a requirement includes state and/or 
local laws regulations, or ordinances, articles, help-wanted 
advertisements, or employer surveys.
    (iii) A foreign language requirement cannot be included merely for 
the convenience of the employer or due to the mere preference of the 
employer, or customers. A foreign language requirement can be based on 
the nature of the occupation; e.g., translator, or, for example, the 
need to communicate with a large majority of the employer's customers 
or contractors who cannot communicate effectively in English. 
Acceptable documentation includes:
    (A) The employer furnishing the number and proportion of its 
clients, or contractors who cannot communicate in English, and/or a 
detailed plan to market products or services in a foreign country; and
    (B) A detailed explanation of why the duties of the position for 
which certification is sought require frequent contact and 
communication with customers, or contractors who cannot communicate in 
English and why it is reasonable to believe that the allegedly foreign 
language customers, employees and contractors cannot communicate in 
English.
    (iv) Combination occupations are acceptable only if the employer 
has employed a U.S. worker in the combination of occupations for the 2 
years immediately before the filing of the application and/or workers 
customarily perform the combination of duties in the area of intended 
employment. Combination occupations can be documented by position 
descriptions and relevant payroll records and/or letters from other 
employers stating that their workers normally perform the combination 
of occupations in the area of intended employment.
    (3) A job requirement for a bachelor's or higher degree does not 
have to be justified if:
    (i) the occupation involved in the employer's application is on a 
list of occupations issued by ETA for which a bachelor's or higher 
degree is required; and
    (ii) the education and training requirements for the employer's job 
opportunity is consistent with the education and training required for 
the occupation involved in the employer's application.
    (h) Actual minimum requirements. (1) The job requirements, as 
described, must represent the employer's actual minimum requirements 
for the job opportunity, and the employer must not have:
    (i) Hired workers with less training or experience for jobs similar 
to that involved in the job opportunity;
    (ii) Included as a requirement for the job offer experience which 
the alien gained working for the employer in any capacity, including 
working as a contract employee; and
    (iii) Paid for any of the alien's education or training necessary 
to satisfy any of the employer's job requirements.
    (2) For purposes of this paragraph (h), the term ``employer'' 
includes predecessor organizations, successors in interest, a parent, 
branch, subsidiary, or affiliate, whether located in the United States 
or another country.
    (i) Conditions of employment. (1) Working conditions must be normal 
to the occupation in the area and industry.
    (2) Live-in requirements are acceptable for household domestic 
service workers only if the employer can demonstrate that the 
requirement is essential to perform in a reasonable manner the job 
duties as described by the employer and that there are not cost-
effective alternatives to a live-in household requirement. Mere 
employer assertions do not constitute acceptable documentation. For 
example, a live-in requirement could be supported by documenting two 
working parents and young children in the household, and/or the 
existence of erratic work schedules requiring frequent travel and a 
need to entertain business associates and clients on short notice. 
Depending upon the situation, acceptable documentation could consist of 
travel vouchers, written estimates of costs of alternatives such as 
baby sitters, a detailed listing of the frequency and

[[Page 30499]]

length of absences of the employer from the home.
    (j) Layoffs. (1) If there has been a layoff by the employer 
applicant in the area of intended employment within 6 months of filing 
the occupation involving the occupation for which certification is 
sought or in a related occupation, the employer must document that it 
has notified and considered all potentially qualified laid off U.S. 
workers of the job opportunity involved in the application and the 
results of the notification.
    (2) For the purposes of paragraph (i)(1) of this section, a related 
occupation is any occupation which requires workers to perform a 
majority of the essential duties involved in the occupation for which 
certification is sought.
    (k) Alien influence and control over job opportunity. If the 
employer is a closely held corporation or partnership in which the 
alien has an ownership interest, or if there is a familial relationship 
between the stockholders, corporate officers, incorporators, or 
partners, and the alien, the employer in the event of an audit must 
provide the following documentation:
    (1) A copy of the articles of incorporation;
    (2) A list of all corporate officers and shareholders of the 
corporation, their titles and positions in the corporate structure, and 
a description of their relationship to each other and to the alien 
beneficiary;
    (3) The financial history of the corporation, including the total 
investment in the corporation and the amount of investment of each 
corporate officer, incorporator and the alien beneficiary; and
    (4) The name of the corporate official with primary responsibility 
for interviewing and hiring applicants for positions within the 
organization and the name(s) of the corporate official(s) having 
control or influence over hiring decisions involving the position for 
which labor certification is sought.


Sec. 656.18  Optional special recruitment and documentation procedures 
for college and university teachers.

    (a) Filing requirements. Applications on behalf of college and 
university teachers must be filed by submitting a completed Application 
for Permanent Employment Certification form and PWDR form with the 
appropriate application processing center.
    (b) Recruitment The employer may recruit for college and university 
teachers under Sec. 656.17 or be able to document that the alien was 
selected for the job opportunity in a competitive recruitment and 
selection process through which the alien was found to be more 
qualified than any of the United States workers who applied for the 
job. For purposes of this paragraph (b), documentation of the 
``competitive recruitment and selection process'' must include:
    (1) A statement, signed by an official who has actual hiring 
authority from the employer outlining in detail the complete 
recruitment procedures undertaken; and which must set forth:
    (i) The total number of applicants for the job opportunity;
    (ii) The specific lawful job-related reasons why the alien is more 
qualified than each U.S. worker who applied for the job; and
    (iii) A final report of the faculty, student, and/or administrative 
body making the recommendation or selection of the alien, at the 
completion of the competitive recruitment and selection process.
    (2) A copy of at least one advertisement for the job opportunity 
placed in a national professional journal, giving the name and the 
date(s) of publication; and which states the job title, duties, and 
requirements;
    (3) Evidence of all other recruitment sources utilized; and
    (4) A written statement attesting to the degree of the alien's 
educational or professional qualifications and academic achievements.
    (c) Time limit for filing. Applications for permanent alien labor 
certification for job opportunities as college and university teachers 
must be filed within 18 months after a selection is made in to a 
competitive recruitment and selection process.
    (d) Alternative procedure. An employer that cannot or does not 
choose to satisfy the special recruitment procedures for a college or 
university teacher under this section may avail itself of the basic 
process at Sec. 656.17. An employer that files for college and 
university teachers under Sec. 656.17 or this section must be able to 
document, if requested by the Certifying Officer, in accordance with 
Sec. 656.24(a)(2)(ii), that the alien was found to be more qualified 
than any U.S. worker who applied for the job opportunity.


Sec. 656.19  Live-in household domestic service workers.

    (a) Filing requirements. Applications on behalf of live-in 
household domestic service workers must be filed by submitting a 
completed Application for Alien Employment Certification form and PWDR 
form endorsed by the SWA with the appropriate application processing 
center.
    (b) Required documentation. Employers filing applications on behalf 
of live-in household domestic must provide, in event of an audit, the 
following documentation:
    (1) A statement describing the household living accommodations that 
must include the following:
    (i) Whether the residence is a house or apartment;
    (ii) The number of rooms in the residence;
    (iii) The number of adults and children, and ages of the children 
residing in the household; and
    (iv) Whether or not free board and a private room not shared by any 
other person will be provided to the alien.
    (2) Two copies of the employment contract, each signed and dated by 
both the employer and the alien (not by their attorneys or agents). The 
contract must clearly state:
    (i) The wages to be paid on an hourly and weekly basis;
    (ii) Total hours of employment per week, and exact hours of daily 
employment;
    (iii) That the alien is free to leave the employer's premises 
during all non-work hours except that the alien may work overtime if 
paid for the overtime at no less than the legally required hourly rate;
    (iv) That the alien will reside on the employer's premises;
    (v) Complete details of the duties to be performed by the alien;
    (vi) The total amount of any money to be advanced by the employer 
with details of specific items, and the terms of repayment by the alien 
of any such advance by the employer;
    (vii) That in no event may the alien be required to give more than 
two weeks' notice of intent to leave the employment contracted for and 
that the employer must give the alien at least two weeks' notice before 
terminating employment;
    (viii) That a duplicate contract has been furnished to the alien;
    (ix) That a private room and board will be provided at no cost to 
the worker; and
    (x) Any other agreement or conditions not specified on the 
Application for Alien Employment Certification form.


Sec. 656.20  Audit letters.

    (a) Issuance of audit letter. Review of the labor certification 
application may lead to an audit of the application. Additionally, 
certain applications may be selected for audit for quality control 
purposes. If an application is selected for audit, the Certifying 
Officer issues an audit letter. The audit letter must:
    (1) Contain the date on which the audit letter was issued;

[[Page 30500]]

    (2) State the documentation that must be submitted by the employer;
    (3) Specify a date, 21 calendar days from the date of the audit 
letter by which the required documentation must be submitted and advise 
that, if the required documentation has not been mailed by certified 
mail by the date specified:
    (i) The application shall be denied;
    (ii) Failure to provide required documentation shall be deemed to 
be a material misrepresentation of the employer's attestation that it 
has complied with all documentation requirements;
    (iii) Failure to provide documentation in a timely manner 
constitutes a refusal to exhaust available administrative remedies; and
    (iv) The administrative-judicial review procedure provided in 
Sec. 656.26 is not available.
    (4) Certifying Officers may not provide any extensions to the 21 
days specified in Sec. 656.20(a)(3).
    (b) If documentation is submitted on time, the Certifying Officer 
reviews that documentation in accordance with the standards in 
Sec. 656.24.
    (c) Before making a final determination in accordance with the 
standards in Sec. 656.24, the Certifying Officer may:
    (1) Request supplemental information and/or documentation; or
    (2) Require the employer to conduct recruitment under Sec. 656.21.


Sec. 656.21  Supervised Recruitment.

    (a) Supervised recruitment. In a case where the Certifying Officer 
determines it to be appropriate, including determinations made pursuant 
to Sec. 656.20(a)(3)(ii), post-filing supervised recruitment may be 
required of the employer.
    (b) Requirements. Supervised recruitment consists of advertising 
for the job opportunity by placing an advertisement in a newspaper, or 
in a professional, trade, or ethnic publication. If published in a 
newspaper of general circulation, be published for 3 consecutive days, 
one of which must be a Sunday, or, if published in a professional, 
trade, or ethnic publication, be published in the next published 
edition. The advertisement must be approved by the Certifying Officer 
before publication and the Certifying Officer will direct where the 
advertisement is placed. The advertisement must:
    (1) Direct applicants to send resumes or applications for the job 
opportunity to the Certifying Officer for referral to the employer;
    (2) Include a regional office identification number and an address 
designated by the Certifying Officer, but must not identify the 
employer;
    (3) Describe the job opportunity;
    (4) State the rate of pay, which must not be below the prevailing 
wage for the occupation entered on the PWDR form by the SWA;
    (5) Summarize the employer's minimum job requirements which cannot 
exceed any of the requirements entered on the PWDR form by the 
employer;
    (6) Offer training if the job opportunity is the type for which 
employers normally provide training; and
    (7) Offer wages, terms and conditions of employment which are no 
less favorable than those offered to the alien.
    (c) Additional or substitute recruitment. The Certifying Officer 
may designate other appropriate sources of workers where the employer 
must recruit for U.S. workers in addition to the advertising described 
in paragraph (b)(1) of this section.
    (d) Recruitment report. The employer must provide to the Certifying 
Officer a detailed written report of the employer's supervised 
recruitment, signed by the employer, or the employer's representative 
described in Sec. 656.10(b)(2)(ii), within 21 days of the Certifying 
Officer's request for such a report. The recruitment report results 
must:
    (1) Identify each recruitment source by name and document that each 
recruitment source named was contacted. This can include, for example, 
copies of letters to recruitment sources such as unions, trade 
associations, colleges and universities and any responses received to 
the employer's inquiries. Documentation of advertisements placed in 
newspapers, professional, trade, or ethnic publications can be 
documented by furnishing copies of the tear sheets of the pages of the 
publication in which the advertisements appeared, proof of publication 
furnished by the publication, or dated copies of the web pages if the 
advertisement appeared on the web as well as in the publication in 
which the advertisement appeared;
    (2) State the number of U.S. workers who responded to the 
employer's recruitment;
    (3) State the names, addresses, and provide resumes (if any) of the 
U.S. workers who applied for the job opportunity, the number of workers 
interviewed, and the job title of the person who interviewed the 
workers;
    (4) Explain, with specificity, the lawful job-related reason(s) for 
not hiring each U.S. worker who applied. Rejection of U.S. workers for 
lacking skills necessary to perform the duties involved in the 
occupation, where the U.S. workers are capable of acquiring the skills 
during a reasonable period of on-the-job training is not a lawful job-
related reason for rejecting the U.S. workers. For the purpose of this 
paragraph (d)(4), a U.S. worker is able and qualified for the job 
opportunity if the worker can acquire the skills necessary to perform 
the duties involved in the occupation during a reasonable period of on-
the-job training.


Sec. 656.24  Labor certification determinations.

    (a) The Certifying Officer makes a determination either to grant or 
deny the labor certification on the basis of whether or not:
    (1) The employer has met the requirements of this part; and
    (2) There is in the United States a worker who is able, willing, 
qualified and available for and at the place of the job opportunity.
    (i) The Certifying Officer must consider a U.S. worker able and 
qualified for the job opportunity if the worker, by education, 
training, experience, or a combination thereof, is able to perform in 
the normally accepted manner the duties involved in the occupation as 
customarily performed by other U.S. workers similarly employed. For the 
purposes of this paragraph (a)(2)(i), a U.S. worker is able and 
qualified for the job opportunity if the worker can acquire the skills 
necessary to perform the duties involved in the occupation during a 
reasonable period of on-the-job training.
    (ii) If the job involves a job opportunity as a college or 
university teacher, the U.S. worker must be at least as qualified as 
the alien.
    (3) The employment of the alien will not have an adverse effect 
upon the wages and working conditions of U.S. workers similarly 
employed. In making this determination the Certifying Officer considers 
such things as labor market information, the special circumstances of 
the industry, organization, and/or occupation, the prevailing wage in 
the area of intended employment, and the prevailing working conditions, 
such as hours in the occupation.
    (b) The Certifying Officer notifies the employer in writing of the 
labor certification determination.
    (c) If a labor certification is granted, except for a labor 
certifications for an occupation on Schedule A (Sec. 656.5) or for 
employment as a sheepherder under Sec. 656.16, the Certifying Officer 
must send the certified application and complete Final Determination 
form to

[[Page 30501]]

the employer, or, if appropriate, to the employer's agent or attorney, 
indicating that the employer may file all the documents with the 
appropriate INS office.
    (d) If the labor certification is denied, the Final Determination 
form must:
    (1) Contain the date of the determination;
    (2) State the reasons for the determination;
    (3) Quote the request for review procedures at Sec. 656.26 (a) and 
(b);
    (4) Advise that failure to request review within 21 calendar days, 
as specified in Sec. 656.26(a), constitutes a failure to exhaust 
administrative remedies;
    (5) Advise that, if a request for review is not made within 21 
calendar days, the denial shall become the final determination of the 
Secretary;
    (6) Advise that if an application for a labor certification is 
denied, and a request for review is not made in accordance with the 
procedures at Sec. 656.26(a) and (b), a new application may be filed at 
any time; and
    (7) Advise that a new application in the same occupation for the 
same alien cannot be filed, while a request for review is pending with 
the Board of Alien Labor Certification Appeals.
    (e) If the Certifying Officer determines that the employer made a 
material misrepresentation that it has complied with all documentation 
requirements pursuant to Sec. 656.20(a)(ii), or otherwise determines a 
material misrepresentation was made with respect to the application for 
any reason, the employer may be required to conduct supervised 
recruitment pursuant to Sec. 656.21 in future filings of labor 
certification applications for 2 years.
    (f) The employer may request reconsideration at any time within 21 
days from the date of insurance of the denial. The Certifying Officer 
may, in his or her complete discretion, reconsider the determination or 
treat it as a request for review under Sec. 656.26(a).


Sec. 656.26  Board of Alien Labor Certification Appeals review of 
denials of labor certification.

    (a) Request for review. (1) If a labor certification is denied or 
revoked, a request for review of the denial or revocation may be made 
to the Board of Alien Labor Certification Appeals by the employer. Any 
employer seeking review of a determination issued under Sec. 656.24, 
including judicial review, must make a request for such an 
administrative review in accordance with the procedures provided in 
this paragraph (a). The request for review:
    (i) Must be in writing;
    (ii) Must be mailed by certified mail to the Certifying Officer who 
denied the application within 21 calendar days of the date of the 
determination, that is, by the date specified on the Final 
Determination form;
    (iii) Must clearly identify the particular labor certification 
determination from which review is sought; must set forth the 
particular grounds for the request; and
    (iv) Must include all the documents which accompanied the Final 
Determination form.
    (2) The request for review, statements, briefs, and other 
submissions of the parties and amicus curiae must contain only legal 
argument and only such evidence that was within the record upon which 
the denial of labor certification was based.
    (b) Upon the receipt of a request for review, the Certifying 
Officer immediately must assemble an indexed Appeal File:
    (1) The Appeal File must be in chronological order, must have the 
index on top followed by the most recent document, and must have 
consecutively numbered pages. The Appeal File must contain the request 
for review, the complete application file, and copies of all the 
written material, such as pertinent parts and pages of surveys and/or 
reports upon which the denial was based.
    (2) The Certifying Officer must send the Appeal File to the Board 
of Alien Labor Certification Appeals, Office of Administrative Law 
Judges, 800 K Street, NW., Suite 400, Washington, DC 20001-8002.
    (3) The Certifying Officer must send a copy of the Appeal File to 
the employer. The employer may furnish or suggest directly to the Board 
of Alien Labor Certification Appeals the addition of any documentation 
which is not in the Appeal File, but which was submitted before the 
issuance of the Final Determination form. The employer must submit such 
documentation in writing, and must send a copy to the Associate 
Solicitor for Employment and Training Legal Services, Office of the 
Solicitor, U.S. Department of Labor, Washington, D.C. 20210.


Sec. 656.27  Consideration by and decisions of the Board of Alien Labor 
Certification Appeals.

    (a) Panel Designations. In considering requests for review before 
it, the Board of Alien Labor Certification Appeals may sit in panels of 
three members. The Chief Administrative Law Judge may designate any 
Board of Alien Labor Certification Appeals member to submit proposed 
findings and recommendations to the Board of Alien Labor Certification 
Appeals or to any duly designated panel thereof to consider a 
particular case.
    (b) Briefs and Statements of Position. In considering the requests 
for review before it, the Board of Alien Labor Certification Appeals 
must afford all parties 21 days to submit or decline to submit any 
appropriate Statement of Position or legal brief. The Department of 
Labor is to be represented solely by the Solicitor of Labor or the 
Solicitor's designated representative.
    (c) Review on the record. The Board of Alien Labor Certification 
Appeals must review the denial of labor certification on the basis of 
the record upon which the denial of labor certification was made, the 
request for review, and any Statements of Position or legal briefs 
submitted and must:
    (1) Affirm the denial of the labor certification; or
    (2) Direct the Certifying Officer to grant the certification; or
    (3) Direct that a hearing on the case be held under paragraph (e) 
of this section.
    (d) Notifications of decisions. The Board of Alien Labor 
Certification Appeals must notify the employer, the alien, the 
Certifying Officer, and the Solicitor of Labor of its decision, and 
must return the record to the Certifying Officer unless the case has 
been set for hearing under paragraph (e) of this section.
    (e) Hearings. (1) Notification of hearing. If the case has been set 
for a hearing, the Board of Alien Labor Certification Appeals must 
notify the employer, the alien, the Certifying Officer, and the 
Solicitor of Labor of the date, time, and place of the hearing, and 
that the hearing may be rescheduled upon written request and for good 
cause shown.
    (2) Hearing procedure. (i) The ``Rules of Practice and Procedure 
For Administrative Hearings Before the Office of Administrative Law 
Judges'', at 29 CFR part 18, apply to hearings under this paragraph 
(e).
    (ii) For the purposes of this paragraph (e)(2), references in 29 
CFR part 18 to: ``administrative law judge'' means the Board of Alien 
Labor Certification Appeals member or the Board of Alien Labor 
Certification Appeals panel duly designated to under Sec. 656.27(a); 
``Office of Administrative Law Judges'' means the Board of Alien Labor 
Certification Appeals; and ``Chief Administrative Law Judge'' means the 
Chief Administrative Law Judge in that official's function of chairing 
the Board of Alien Labor Certification Appeals.

[[Page 30502]]

Sec. 656.30  Validity of and invalidation of labor certifications.

    (a) Validity of labor certifications. Except as provided in 
paragraph (d) of this section, a labor certification is valid 
indefinitely.
    (b) Validation date. (1) A labor certification involving a job 
offer is validated as of the date the servicing office date-stamped the 
application; and
    (2) A labor certification for a Schedule A occupation is validated 
as of the date the application was dated by the Immigration Officer.
    (c) Scope of validity. (1) A labor certification for a Schedule A 
occupation is valid only for the occupation set forth on the 
Application for Alien Employment Certification form and throughout the 
United States unless the certification contains a geographic 
limitation.
    (2) A labor certification involving a specific job offer is valid 
only for the particular job opportunity and for the area of intended 
employment stated on the Application for Alien Employment Certification 
form.
    (d) Invalidation of labor certifications. After issuance, a labor 
certifications is subject to invalidation by the INS or by a Consul of 
the Department of State upon a determination, made in accordance with 
those agencies' procedures or by a Court, of fraud or willful 
misrepresentation of a material fact involving the labor certification 
application. If evidence of such fraud or willful misrepresentation 
becomes known to an RD or to the Chief, Division of Foreign Labor 
Certifications, the RD or the Chief, Division of Foreign Labor 
Certifications, as appropriate, notifies in writing the INS or State 
Department, as appropriate. A copy of the notification must be sent to 
the regional or national office, as appropriate, of the Department of 
Labor's Office of Inspector General.
    (e) Duplicate labor certifications. Certifying Officers shall issue 
duplicate labor certifications only upon the written request of a 
Consular or Immigration Officer. Certifying Officers shall issue such 
duplicate certifications only to the Consular or Immigration Officer 
who submitted the written request. An alien, employer, or an alien's or 
employer's agent, therefore, may petition an Immigration or Consular 
Officer to request a duplicate labor certification from a Certifying 
Officer.


Sec. 656.31  Labor certification applications involving fraud or 
willful misrepresentation.

    (a) Possible fraud or willful misrepresentation. If possible fraud 
or willful misrepresentation involving a labor certification is 
discovered before a final labor certification determination, the 
Certifying Officer must refer the matter to the INS for investigation, 
must notify the employer in writing, and must send a copy of the 
notification to the alien, and to the Department of Labor's Office of 
Inspector General. If 90 days pass without the filing of a criminal 
indictment or information, or receipt of a notification from INS that 
an investigation is being conducted, the Certifying Officer must 
continue to process the application.
    (b) Criminal indictment or information. If it is learned that an 
application is the subject of a criminal indictment or information 
filed in a court, the processing of the application must be halted 
until the judicial process is completed. The Certifying Officer must 
notify the employer of this fact in writing and must send a copy of the 
notification to the alien, and to the Department of Labor's Office of 
Inspector General.
    (c) Finding of no fraud or willful misrepresentation. If a court 
finds that there was no fraud or willful misrepresentation, or if the 
Department of Justice decides not to prosecute, the Certifying Officer 
must not deny the labor certification application on the grounds of 
fraud or willful misrepresentation. The application, of course, may be 
denied for other reasons under this part.
    (d) Finding of fraud or willful misrepresentation. If a court, the 
INS or the Department of State determines that there was fraud or 
willful misrepresentation involving a labor certification application, 
the application is automatically invalidated, processing is terminated, 
a notice of the termination and the reason therefor is sent by the 
Certifying Officer to the employer, and a copy of the notification is 
sent by the Certifying Officer to the alien, and to the Department of 
Labor's Office of Inspector General.


Sec. 656.32  Revocation of approved labor certifications.

    (a) Basis for DOL Revocation. Within 1 year of the date a labor 
certification is granted or before a visa number becomes available to 
the alien beneficiary, whichever occurs first, the Certifying Officer 
who issued it, in consultation with the National Certifying Officer, 
may take steps to revoke a labor certification, if he/she finds that 
the certification was improvidently granted.
    (b) DOL procedures for revocation. (1) The Certifying Officer sends 
to the employer, and a copy to the alien, a Notice of Intent to Revoke 
an approved labor certification.
    (2) The Notice of Intent to Revoke must contain a detailed 
statement of the grounds for the revocation and the time period allowed 
for the employer's rebuttal. The employer may submit evidence in 
rebuttal within 21 days of receipt of the notice. The Certifying 
Officer must consider all relevant evidence presented in deciding 
whether to revoke the labor certification.
    (3) The Certifying Officer must inform the employer within 30 days 
of receiving any rebuttal evidence whether or not the labor 
certification will be revoked.
    (4) The Certifying Officer must send a notice to the employer, with 
a copy to the alien, informing the employer whether or not the labor 
certification has been revoked.
    (5) If the labor certification is revoked, the Certifying Officer 
must also send a copy of the notification to the INS.
    (6) If rebuttal evidence is not filed by the employer, the Notice 
of Intent to Revoke becomes the final decision of the Secretary.
    (7) If the Employer files rebuttal evidence and the Certifying 
Officer determines that the certification should be revoked, the 
employer may file an appeal under Sec. 656.26.

Subpart D--Determination of Prevailing Wage


Sec. 656.40  Determination of prevailing wage for labor certification 
purposes.

    (a) Application process. The employer must complete the appropriate 
sections of the PWDR form and submit it to the SWA having jurisdiction 
over the proposed area of intended employment. The SWA must enter its 
wage determination on the PWDR form and return the form with its 
endorsement to the employer. Unless the employer chooses to appeal the 
SWA's prevailing wage determination under Sec. 656.41(a), it submits 
the PWDR form and the Application for Alien Employment Certification to 
the ETA servicing office.
    (b) Determinations. The SWA determines the prevailing wage as 
follows:
    (1) Except as provided in paragraphs (e) and (f) of this section, 
if the job opportunity is in an occupation covered by a collective 
bargaining agreement (CBA) which was negotiated at arms-length between 
the union and the employer, the wage rate set forth in the CBA 
agreement is considered as not adversely affecting the wages of U.S. 
workers similarly employed, that is, it is considered the ``prevailing 
wage'' for labor certification purposes.
    (2) If the job opportunity is in an occupation which is not covered 
by a

[[Page 30503]]

CBA, the prevailing wage for labor certification purposes shall be the 
arithmetic mean, except as provided in paragraphs (b)(3) of this 
section, of the wages of workers similarly employed in the area of 
intended employment. The wage component of the Occupational Employment 
Statistics Survey shall be used to determine the arithmetic mean, 
unless the employer provides an acceptable survey under paragraph (g) 
of this section.
    (3) If the employer provides a survey acceptable under paragraph 
(g) of this section provides a median and does not provide an 
arithmetic mean, the median shall be the prevailing wage applicable to 
the employer's job opportunity.
    (4) The employer may utilize a current DBA or SCA wage 
determination in the occupation and the area of intended employment as 
the prevailing wage.
    (c) Validity Period. The SWA must specify the validity period of 
the prevailing wage on the PWDR form, which in no event may be less 
than 90 days or more than 1 year from the determination date entered on 
the PWDR. To use a SWA PWD, employers must file their applications or 
begin the recruitment required by Secs. 656.17(c) or 656.21 within the 
validity period specified by the SWA.
    (d) Similarly employed. For purposes of this section, except as 
provided in paragraphs (e) and (f) of this section, ``similarly 
employed'' means ``having substantially comparable jobs in the 
occupational category in the area of intended employment,'' except 
that, if a representative sample of workers in the occupational 
category cannot be obtained in the area of intended employment, 
``similarly employed'' means:
    (1) ``Having jobs requiring a substantially similar level of skills 
within the area of intended employment''; or
    (2) If there are no substantially comparable jobs in the area of 
intended employment, ``Having substantially comparable jobs with 
employers outside of the area of intended employment''.
    (e) Institutions of higher education and research entities. In 
computing the prevailing wage for a job opportunity in an occupational 
classification in an area of intended employment for an employee of an 
institution of higher education, or an affiliated or nonprofit entity; 
a nonprofit research organization; or a Governmental research 
organization, the prevailing wage level only takes into account the 
wage levels of employees at such institutions and organizations in the 
area of intended employment.
    (1) The organizations listed in this paragraph (e) are defined as 
follows:
    (i) An institution of higher education is defined in section 101(a) 
of the Higher Education Act of 1965. Section 101(a) of that act, 20 
U.S.C. 1001(a) (2000), provides that an ``institution of higher 
education'' is an educational institution in any State that --
    (A) Admits as regular students only persons having a certificate of 
graduation from a school providing secondary education, or the 
recognized equivalent of such a certificate;
    (B) Is legally authorized within such State to provide a program of 
education beyond secondary education;
    (C) Provides an educational program for which the institution 
awards a bachelor's degree or provides not less than a 2-year program 
that is acceptable for full credit toward such a degree;
    (D) Is a public or other nonprofit institution; and
    (E) Is accredited by a nationally recognized accrediting agency or 
association or, if not so accredited, is an institution that has been 
granted preaccreditation status by such an agency or association that 
has been recognized by the Secretary of Education for the granting of 
preaccreditation status, and the Secretary of Education has determined 
that there is satisfactory assurance that the institution will meet the 
accreditation standards of such an agency or association within a 
reasonable time.
    (ii) Affiliated or related nonprofit entity. A nonprofit entity 
(including but not limited to a hospital and a medical or research 
institution) that is connected or associated with an institution of 
higher education, through shared ownership or control by the same board 
or federation, operated by an institution of higher education, or 
attached to an institution of higher education as a member, branch, 
cooperative, or subsidiary;
    (iii) Nonprofit research organization or Governmental research 
organization. A research organization that is either a nonprofit 
organization or entity that is primarily engaged in basic research and/
or applied research, or a United States Government entity whose primary 
mission is the performance or promotion of basic research and/or 
applied research. Basic research is general research to gain more 
comprehensive knowledge or understanding of the subject under study, 
without specific applications in mind. Basic research is also research 
that advances scientific knowledge, but does not have specific 
immediate commercial objectives although it may be in fields of present 
or commercial interest. It may include research and investigation in 
the sciences, social sciences, or humanities. Applied research is 
research to gain knowledge or understanding to determine the means by 
which a specific, recognized need may be met. Applied research includes 
investigations oriented to discovering new scientific knowledge that 
has specific commercial objectives with respect to products, processes, 
or services. It may include research and investigation in the sciences, 
social sciences, or humanities.
    (2) A non-profit organization or entity for the purpose of this 
paragraph (e) means an organization which is qualified as a tax exempt 
organization under the Internal Revenue Code of 1986, section 
501(c)(3), (c)(4), or (c)(6) (26 U.S.C. 501(c)(3), (c)(4) or (c)(6)), 
and has received approval as a tax exempt organization from the 
Internal Revenue Service, as it relates to research or educational 
purposes.
    (f) Professional athletes. In computing the prevailing wage for a 
professional athlete, as defined in section 212(a)(5)(A)(iii)(II) of 
the Act, when the job opportunity is covered by professional sports 
league rules or regulations, the wage set forth in those rules or 
regulations is considered the prevailing wage. Section 
212(a)(5)(A)(iii)(II), 8 U.S.C. 1182(a)(5)(A)(iii)(II) (1999), defines 
a professional athlete as an individual who is employed as an athlete 
by--
    (1) A team that is a member of an association of six or more 
professional sports teams whose total combined revenues exceed 
$10,000,000 per year, if the association governs the conduct of its 
members and regulates the contests and exhibitions in which its member 
teams regularly engage; or
    (2) Any minor league team that is affiliated with such an 
association.
    (g) Employer provided wage information. (1) If the job opportunity 
is not covered by a CBA, the SWA must consider wage information 
provided by the employer in making a prevailing wage determination.
    (2) In each case where the employer submits a survey or other wage 
data for which it seeks acceptance, the employer must provide the SWA 
with enough information about the survey methodology, including such 
items as sample frame size and source, sample selection procedures, and 
survey job descriptions, to allow the SWA to make a determination about 
the adequacy of the data provided and validity of the statistical 
methodology used in conducting the survey in accordance

[[Page 30504]]

with guidance issued by the ETA National Office.
    (3) The survey submitted to the SWA must be based upon recently 
collected data:
    (i) A published survey must have been published within 24 months of 
the date of submission to the SWA, must be the most current edition of 
the survey, and the data upon which the survey is based must have been 
collected within 24 months of the publication date of the survey.
    (ii) A survey conducted by the employer must be based on data 
collected within 24 months of the date it is submitted to the SWA.
    (4) A prevailing wage determination based upon an employer-provided 
wage survey is applicable only to the specific action for which the 
wage determination is issued and does not supersede the prevailing wage 
rate for an occupation based upon the arithmetic mean provided by the 
Occupational Employment Statistics program, as applied to other 
requests for prevailing wage determinations.
    (5) If the employer-provided survey is found not to be acceptable, 
the SWA must inform the employer in writing of the reasons the survey 
was not accepted.
    (6) The employer, after receiving notification that the survey it 
provided for the SWA's consideration is not acceptable, may file 
supplemental information as provided in paragraph (h) of this section, 
file a new request for a prevailing wage determination, or appeal under 
Sec. 656.41.
    (h) Submittal of supplemental information by employer. (1) If the 
employer disagrees with the skill level assigned to its job 
opportunity, or if the SWA informs the employer that its survey is not 
acceptable, the employer may submit supplemental information to the SWA 
concerning the skill level of its job opportunity or the survey it 
provided for the SWA's consideration.
    (2) The SWA must consider one supplemental filing about the 
employer's survey or the skill level the SWA assigned to the job 
opportunity. If the SWA does not accept the employer's survey after 
considering the supplemental information, or affirms its determination 
concerning the skill level, it must inform the employer of the reasons 
for its decision.
    (3) The employer may then apply for a new wage determination or 
appeal under Sec. 656.41.
    (i) Wage cannot be lower than required by any other law. No 
prevailing wage determination for labor certification purposes made 
under this section permits an employer to pay a wage lower than the 
highest wage required by any applicable Federal, State or local law.
    (j) Fees prohibited. No SWA employee may charge a fee in connection 
with the filing of a request for a prevailing wage determination, 
responding to such a request, or responding to a request for a review 
of a SWA prevailing wage determination under Sec. 656.41.

Alternative One for Sec. 656.41


Sec. 656.41  ETA Prevailing Wage Panel review of prevailing wage 
determinations.

    (a) Review of SWA prevailing wage determinations. Any employer 
desiring review, including judicial review, of a SWA prevailing wage 
determination must make a request for such a review to the ETA 
Prevailing Wage Panel within 21 calendar days of receiving a 
determination from the SWA. The request for review must be in writing 
and mailed by certified mail to the SWA that issued the prevailing wage 
determination (PWD) within 21 calendar days of the date of the PWD; 
clearly identify the particular prevailing wage determination from 
which review is sought; set forth the particular grounds for the 
request; and include all the materials pertaining to the PWD submitted 
to the SWA up to the date of the PWD received from the SWA, and all the 
documents the employer received from the SWA concerning the PWD.
    (b) Transmission of request to the panel. (1) Upon the receipt of a 
request for review, the SWA must review the employer's request and 
accompanying documentation and include any material sent to the 
employer by the SWA up to the date of the PWD that may have been 
omitted by the employer.
    (2) The SWA must send a copy of the employer's appeal, including 
any material added under paragraph (b)(1) of this section, to the U.S. 
Department of Labor, ETA Prevailing Wage Panel, Division of Foreign 
Labor Certifications, 200 Constitution Avenue, NW., Room C-4318 
Washington, DC 20210.
    (3) The SWA must send a copy of the employer's appeal and any 
material added by the SWA under paragraph (b)(1) of this section to the 
employer. The employer may furnish or suggest directly to the ETA 
Prevailing Wage Panel the addition of any documentation which is not 
among the materials sent to the ETA Prevailing Wage Panel by the SWA, 
but which was submitted before the issuance of the prevailing wage 
determination. The employer must submit such documentation in writing, 
and shall send a copy to the SWA which issued the PWD.
    (c) Designations. The size and composition of the ETA Prevailing 
Wage Panel is determined by the Chief, Division of Foreign Labor 
Certifications. Staffing of the panel may include both SWA and Federal 
staff and may include specialists in survey methodology, prevailing 
wage determinations, and occupational analysis and classification.
    (d) Review on the record. The ETA Prevailing Wage Panel reviews the 
SWA prevailing wage determination solely on the basis upon which the 
prevailing wage determination was made and upon the request for review, 
and may:
    (1) Affirm the prevailing wage determination issued by the SWA;
    (2) Modify the prevailing wage determination; or
    (3) Remand the matter to the SWA for further action.
    (e) Request for review by BALCA. Any employer, desiring review, 
including judicial review, of a determination of the PWP must make a 
request for review of the determination by the Board of Alien Labor 
Certification Appeals within 21 calendar days of the receipt of the 
decision of the ETA Prevailing Wage Panel.
    (1) The request for review must be in writing and addressed to the 
Chairperson of the ETA Prevailing Wage Panel. Upon receipt of a request 
for review, the Chairperson must immediately assemble an indexed appeal 
file in chronological order with the index on top followed by the most 
recent document.
    (2) The Chairperson must send the Appeal File to the Office of 
Administrative Law Judges, Board of Alien Labor Certification Appeals, 
800 K Street, Suite 400-N, Washington, DC 20001-8002.
    (3) The BALCA handles the appeals under Secs. 656.26 and 27 of this 
part.

Alternative Two for Sec. 656.41


Sec. 656.41  ETA Prevailing Wage Panel review of prevailing wage 
determinations.

    (a) Review of SWA prevailing wage determinations. Any employer 
desiring review, including judicial review, of a SWA prevailing wage 
determination must make a request for such a review to the ETA 
Prevailing Wage Panel within 21 calendar days of receiving a 
determination from the SWA. The request for review must be in writing 
and mailed by certified mail to the SWA that issued the prevailing wage 
determination (PWD) within 21 calendar days of the date of the PWD; 
clearly identify the particular prevailing wage determination from 
which review is sought; set forth the particular grounds for the 
request; and include all

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the materials pertaining to the PWD submitted to the SWA up to the date 
of the PWD received from the SWA, and all the documents the employer 
received from the SWA concerning the PWD.
    (b) Transmission of request to the panel. (1) Upon the receipt of a 
request for review, the SWA must review the employer's request and 
accompanying documentation and include any material sent to the 
employer by the SWA up to the date of the PWD that may have been 
omitted by the employer.
    (2) The SWA must send a copy of the employer's appeal, including 
any material added under paragraph (b)(1) of this section, to the U.S. 
Department of Labor, ETA Prevailing Wage Panel, Division of Foreign 
Labor Certifications, 200 Constitution Avenue, NW., Room C-4318 
Washington, DC 20210.
    (3) The SWA must send a copy of the employer's appeal and any 
material added by the SWA under paragraph (b)(1) of this section to the 
employer. The employer may furnish or suggest directly to the ETA 
Prevailing Wage Panel the addition of any documentation which is not 
among the materials sent to the ETA Prevailing Wage Panel by the SWA, 
but which was submitted before the issuance of the prevailing wage 
determination. The employer must submit such documentation in writing, 
and must send a copy to the SWA which issued the PWD.
    (c) Designations. The size and composition of the ETA Prevailing 
Wage Panel is determined by the Chief, Division of Foreign Labor 
Certifications. The panel's staff may include both SWA and Federal 
staff and may include specialists in survey methodology, prevailing 
wage determinations, and occupational analysis and classification.
    (d) Review on the record. The ETA Prevailing Wage Panel reviews the 
SWA prevailing wage determination solely on the basis upon which the 
prevailing wage determination was made and upon the request for review, 
and may:
    (1) Affirm the prevailing wage determination issued by the SWA;
    (2) Modify the prevailing wage determination; or
    (3) Remand the matter to the SWA for further action.
    (e) Request for review by BALCA. Any employer, desiring review, 
including judicial review, of a determination of the PWP must make a 
request for review of the determination by the Board of Alien Labor 
Certification Appeals within 21 calendar days of the receipt of the 
decision of the ETA Prevailing Wage Panel.
    (1) The request for review must be in writing and addressed to the 
Chairperson of the ETA Prevailing Wage Panel. Upon receipt of a request 
for review, the Chairperson must immediately assemble an indexed appeal 
file in chronological order with the index on top followed by the most 
recent document.
    (2) The Chairperson must send the Appeal File to the Office of 
Administrative Law Judges, Board of Alien Labor Certification Appeals, 
800 K Street, Suite 400-N, Washington, DC 20001-8002.
    (3) The BALCA handles the appeals under Secs. 656.26 and 27 of this 
chapter.
    (f) Review of Wage Determination Involving the Service Contract Act 
or Davis-Bacon Act.
    (1) Where an employee seeks to challenge a SWA prevailing wage rate 
that is based on a wage determination issued under either the McNamara-
O'Hara Service Contract Act (SCA) or the Davis-Bacon Act (DBA), the 
employer must either:
    (i) Follow the procedures set forth at 29 CFR 4.56 and 29 CFR Part 
8, subpart B, where the challenged rate is based on a wage 
determination issued under the SCA, or
    (ii) Follow the procedures set forth at 29 CFR 1.8, 1.9, and 29 CFR 
Part 7, subpart B, where the challenged rate is based on a wage 
determination issued under the DBA.
    (2) Limitations contained in the regulations as to who may seek 
review of a wage determination (e.g., 29 CFR 7.2(b)) or the timeliness 
of such review with regard to certain procurement actions (e.g., 29 CFR 
8.6(b)) do not apply to the review of SWA prevailing wage under this 
paragraph (f).

    Signed at Washington, DC, this 24th day of April, 2002.
Emily Stover DeRocco,
Assistant Secretary for Employment and Training.

    [The following two forms will not appear in the Code of Federal 
Regulations.]
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[FR Doc. 02-10570 Filed 5-3-02; 8:45 am]
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