[Federal Register Volume 86, Number 217 (Monday, November 15, 2021)]
[Notices]
[Pages 63070-63073]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-24813]


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DEPARTMENT OF LABOR

Employment and Training Administration


Update to Appendix A to the Preamble--Education and Training 
Categories by O*NET--SOC Occupations; Labor Certification for Permanent 
Employment of Immigrants in the United States and Procedures To 
Establish Job Zone Values When O*NET Job Zone Data Are Unavailable

AGENCY: Employment and Training Administration, Department of Labor.

ACTION: Notice.

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SUMMARY: The Employment and Training Administration (ETA) of the 
Department of Labor (Department) is issuing this notice to announce 
updates to Appendix A to the Preamble-Education and Training Categories 
by Occupational Information Network (O*NET)-Standard Occupational 
Classification (SOC) Occupations. Appendix A is a list of professional 
occupations that serves as a guide for employers to distinguish between 
professional and non-professional occupations in order to comply with 
the professional recruitment requirements of the permanent labor 
certification (PERM) program. In addition, this notice announces 
standard procedures for establishing Job Zones for a SOC code and 
occupational title in situations where O*NET Job Zone data are not yet 
available as O*NET transitions to the 2018 SOC system. These actions, 
updating Appendix A and establishing standard procedures for Job Zone 
values where O*NET Job Zone data are unavailable for certain 
occupations, will allow ETA to maintain a more comprehensive and 
current list of occupations and provide additional clarity to employers 
and the public regarding the appropriate education requirements and Job 
Zone value for each SOC code and occupational title.

DATES: This Notice is effective on November 15, 2021.

FOR FURTHER INFORMATION CONTACT: Brian Pasternak, Administrator, Office 
of Foreign Labor Certification, Employment and Training Administration, 
Department of Labor, 200 Constitution Avenue NW, Room N-5311, 
Washington, DC 20210, Telephone: (202) 693-8200 (this is not a toll-
free number). Individuals with hearing or speech impairments may access 
the telephone number above via TTY/TDD by calling the toll-free Federal 
Information Relay Service at 1 (877) 889-5627.

SUPPLEMENTARY INFORMATION:

I. Statutory Background

    The Immigration and Nationality Act (INA), as amended, assigns 
responsibilities to the Secretary of Labor (Secretary) relating to the 
entry and employment of certain categories of immigrants and 
nonimmigrants. The INA prohibits the admission of certain employment-
based immigrants unless the Secretary has certified that (1) there are 
not sufficient workers who are able, willing, qualified and available 
at the time of application for a visa and admission to the United 
States and at

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the place where the foreign worker is to perform such skilled or 
unskilled labor, and (2) the employment of such foreign worker will not 
adversely affect the wages and working conditions of workers in the 
United States similarly employed.\1\ The Secretary has delegated the 
responsibilities under the INA to administer the PERM program at 20 CFR 
part 656 to the Assistant Secretary for ETA, who in turn has delegated 
that authority to OFLC.\2\
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    \1\ See 8 U.S.C. 1182(a)(5)(A); 8 U.S.C. 1101(a)(15)(E)(iii), 
(H)(i)(b), (H)(i)(b)(1).
    \2\ See Secretary's Order 06-2010 (Oct. 20, 2010).
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II. Appendix A

A. Origin and Purpose of Appendix A

    On December 27, 2004, the Department published the Final Rule, 
Labor Certification for the Permanent Employment of Aliens in the 
United States; Implementation of New System, 69 FR 77326 (December 27, 
2004) (Final Rule), revising the regulations at 20 CFR part 656. The 
Final Rule requires employers to conduct recruitment of U.S. workers 
before filing their applications under the PERM program and introduced 
different recruitment requirements for non-professional occupations and 
professional occupations.\3\ In the preamble to the Final Rule, the 
Department included an appendix titled Appendix A, which listed O*NET 
occupations using BLS 2000 SOC codes and titles for which a bachelor's 
or higher degree is a customary requirement, and for which the employer 
must recruit under the standards for professional occupations under 20 
CFR 656.17(e)(1). The Department explained that the list was intended 
to identify professional occupations the Department considered 
appropriate for recruiting under the standards for professional 
occupations and offered the list as a guide for employers to determine 
recruitment requirements.\4\
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    \3\ The term ``professional occupation'' is defined as ``an 
occupation for which the attainment of a bachelor's or higher degree 
is a usual education requirement.'' 20 CFR 656.3 (emphasis added). 
As explained in the Final Rule, and codified at 20 CFR 656.3, it is 
not a requirement that the foreign worker-beneficiary listed on an 
application possess a bachelor's or higher degree themselves for the 
job opportunity to meet the definition of a professional occupation. 
Id.; 69 FR 77326, 77345-46 (Dec. 27, 2004). However, if an employer 
is willing to accept work experience in lieu of a bachelor's or 
higher degree, such work experience ``must be attainable in the U.S. 
labor market and must be stated on the application form.'' 20 CFR 
656.3. Similarly, if an equivalent foreign degree is acceptable, 
this also ``must be clearly stated on the Application for Permanent 
Employment Certification form.'' Id. In comparison, the term 
``nonprofessional occupation'' means ``any occupation for which the 
attainment of a bachelor's or higher degree is not a usual 
requirement for the occupation.'' Id.; 69 FR 77326, 77345-46.
    \4\ See 69 FR 77326, 77345-46 (``The primary purpose of the list 
of occupations is to provide employers with the necessary 
information to determine whether to recruit under the standards 
provided in the regulations for professional occupations or for 
nonprofessional occupations.'').
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    The Department created Appendix A using a list of occupations that 
BLS developed based on the usual education and training requirements 
for the occupations.\5\ As the Department explained, each of the 
occupations listed in Appendix A was assigned a BLS education and 
training category (E&TC) code, which indicated the ``most significant 
source of level of education or training'' required by an 
occupation.\6\ In 2010, BLS ceased publishing the education 
requirements for SOC codes under the E&TC system. However, BLS now 
publishes the typical entry-level educational requirements for SOC 
codes in conjunction with the annual wage estimates based on the 
Occupational Employment and Wage Statistics (OEWS) wage survey.\7\
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    \5\ See Notice of Proposed Rulemaking, Labor Certification for 
the Permanent Employment of Aliens in the United States; 
Implementation of New System, 67 FR 30466, 30471 (May 6, 2002).
    \6\ See id.; Comment Request, 75 FR 60139, 60140 (Sept. 29, 
2010). See also Employment Projections through the Lens of Education 
and Training, 15, Monthly Labor Review: April 2012, Bureau of Labor 
Statistics (explaining the reasons for development of the current 
education and training system and the differences between the old 
and new systems), available at https://www.bls.gov/opub/mlr/2012/article/employment-projections-through-the-lens-of-education-and-training.htm; Employment Projections: Methods, Bureau of Labor 
Statistics (explaining that the current system ``replaced [the] 
earlier system that was used between 1995 and 2008'' and the ``two 
systems are not comparable''), available at https://www.bls.gov/emp/documentation/education/tech.htm.
    \7\ BLS's OEWS survey was named the Occupational Employment 
Statistics survey prior to March 31, 2021. See https://www.bls.gov/oes/home.htm.
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B. Use of Appendix A

    OFLC processes the PERM labor certification application, Form ETA-
9089, Application for Permanent Employment Certification,\8\ and uses 
Appendix A to determine whether the SOC code assigned to the requested 
job opportunity \9\ in the application generally requires a bachelor's 
degree for entry, such that the employer must conduct professional 
recruitment under 20 CFR 656.17(e)(1).\10\ The absence of an occupation 
from Appendix A is not dispositive of an employer's recruitment 
obligations. However, if the occupation is not listed in Appendix A, as 
updated and posted annually as notice(s) on the OFLC website, and it 
does not otherwise meet the definition of a professional occupation 
under 20 CFR 656.3, the employer is not required to conduct 
professional recruitment.\11\
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    \8\ The current form title is ETA Form 9089, but the Department 
recently submitted proposed changes to the form to the Office of 
Management and Budget (OMB) for review and approval in accordance 
with the Paperwork Reduction Act. See Agency Information Collection 
Activities; Submission for OMB Review; Comment Request; Application 
for Permanent Employment Certification, 86 FR 22714 (Apr. 29, 2021).
    \9\ Generally, the SOC code assigned to an employer's job 
opportunity is indicated in the Prevailing Wage Determination issued 
by OFLC's National Prevailing Wage Center.
    \10\ OFLC's National Prevailing Wage Center (NPWC) also consults 
the list of occupations in Appendix A to determine the education and 
experience norms for occupations when it processes prevailing wage 
determination requests, Form ETA-9141, Application for Prevailing 
Wage Determination. Specifically, NPWC uses the E&TC codes on the 
list of occupations in its determination of prevailing wages by 
comparing an employer's education requirement listed on the Form 
ETA-9141 with the education requirement indicated on the E&TC code 
for that occupation. Employment and Training Administration; 
Prevailing Wage Determination Policy Guidance, Nonagricultural 
Programs (Revised Nov. 2009), available at https://www.dol.gov/sites/dolgov/files/ETA/oflc/pdfs/NPWHC_Guidance_Revised_11_2009.pdf.
    \11\ See 20 CFR 656.17(e)(2) (recruitment obligations for 
nonprofessional occupations); 69 FR 77326, 77388 (listing 
definitions of ``professional occupation'' and ``nonprofessional 
occupation'').
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C. Availability of New Education Data and the Department's Decision To 
Update Appendix A

    ETA believes it is necessary to publish this notice to provide the 
best available information to guide employers in determining 
recruitment requirements under the PERM program, especially as the list 
of occupations in Appendix A has become outdated. For example, an 
increasing number of occupational codes are no longer listed by the 
same SOC code and occupational title in Appendix A due to updates to 
the SOC manual in 2010 and 2018.\12\ Accordingly, it had become 
necessary for OFLC to develop a method to crosswalk occupations (i.e., 
connecting an outdated occupation to the O*NET database to find an 
occupation that best matches the job opportunity indicated in the 
employer's application). However, with the BLS publication of the 
typical entry-level educational requirement in conjunction with its 
annual OEWS wage estimates for the SOC codes and titles, ETA is now 
able to provide notice of corresponding updates to Appendix A, which 
are based on occupational and education data from BLS, and maintain a 
more current list of professional occupations that provides greater 
clarity to the public on the appropriate education

[[Page 63072]]

requirements for each occupation.\13\ ETA intends to annually review 
the BLS occupational and education data with the annual OEWS wage 
estimates each May and, as appropriate, publish a full update to 
Appendix A consistent with the BLS data, even if BLS data have not 
changed from the previous year.
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    \12\ See, e.g., Standard Occupational Classification Manual 
(2018), available at https://www.bls.gov/soc/2018/soc_2018_manual.pdf.
    \13\ See https://www.bls.gov/oes/additional.htm.
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D. Effective Date of the Updated List of Occupations in Appendix A

    The updated list of occupations in Appendix A will be published on 
OFLC's website on or before June 30, 2022, along with the wage data 
applicable in the new wage year, which starts July 1, 2022 and 
continues until June 30, 2023. Employers will be able to rely on the 
list of occupations and the education requirements associated with the 
occupations in Appendix A that OFLC publishes each year on its website. 
In order to minimize the impact of newly-added professional occupations 
and to ensure appropriate notice for employers, including those engaged 
in any pre-filing recruitment under 20 CFR 656.17(e), professional 
recruitment obligations under 20 CFR 656.17(e)(1) will generally not 
apply to professional occupations that are newly added to the list of 
professional occupations in Appendix A unless OFLC has both: (1) 
Published the occupation on a list of professional occupations as a 
notice on the OFLC website; and (2) OFLC's National Prevailing Wage 
Center (NPWC) has assigned the SOC code in connection with the issuance 
of a prevailing wage determination under 20 CFR 656.40. As the 
Department explained in the Final Rule, ``[t]he primary purpose of the 
list of occupations [in Appendix A] is to provide employers with the 
necessary information to determine whether to recruit under the 
standards provided in the regulations for professional occupations or 
for nonprofessional occupations.'' 69 FR 77326, 77346. However, 
``[e]mployers that conduct more recruitment than is required will not 
have their applications denied for that reason. Employers filing 
applications involving nonprofessional occupations are free to recruit 
under the requirements for professional occupations if they believe by 
so doing it will yield more applications from willing, able, and 
qualified U.S. workers.'' Id. Accordingly, ETA believes that providing 
this notice to annually review and publish a new list of professional 
occupations in Appendix A on OFLC's website--even when BLS data have 
not changed from the previous year--will provide employers with the 
best available information to guide them in determining recruitment 
requirements and wage obligations. Specifically, OFLC will use BLS's 
latest occupational and education data annually, beginning in the July 
2022 through June 2023 wage year, when the wages are updated based upon 
the same BLS release cycle.

III. Job Zones

A. O*NET Five Job Zones

    A Job Zone is a group of occupations that are similar in the amount 
of (1) education; (2) related experience; and (3) on-the-job training 
that is needed to perform the work. O*NET classifies occupations into 
one of five Job Zones, ranging from little or no preparation to an 
extensive amount of preparation needed to perform the job. Job Zone One 
occupations require little or no preparation to perform the job. Job 
Zone Two occupations require some preparation. Job Zone Three 
occupations require medium preparation. Job Zone Four occupations 
require considerable preparation, and Job Zone Five occupations require 
extensive preparation to perform the job.\14\
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    \14\ See O*NET OnLine Help: Job Zones, available at https://
www.onetonline.org/help/online/zones.
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    More specifically, Job Zone One occupations may require: (1) A high 
school diploma or GED certificate; (2) minimal work-related skill, 
knowledge, or experience; and (3) a few days to a few months of job 
training. Examples of Job Zone One occupations include: Dishwashers, 
sewing machine operators, and landscaping and groundskeeping workers. 
Job Zone Two occupations usually require: (1) A high school diploma; 
(2) some previous work-related skill, knowledge, or experience; and (3) 
a few months to one year of working. Examples of Job Zone Two 
occupations include: Counter and rental clerks, customer service 
representatives, and security guards. Job Zone Three occupations 
usually require: (1) Training in vocational schools, related on-the-job 
experience, or an associate's degree; (2) previous work-related skill, 
knowledge, or experience; and (3) one or two years of training 
involving both on-the-job experience and informal training. These 
occupations usually involve using communication and organizational 
skills to coordinate, supervise, manage, or train others. Examples of 
Job Zone Three occupations include: Electricians, court reporters, and 
medical assistants. Job Zone Four occupations usually require: (1) A 
four-year bachelor's degree; (2) considerable amount of work-related 
skill, knowledge, or experience; and (3) several years of work-related 
experience, on-the-job training, and/or vocational training. These 
occupations involve coordinating, supervising, managing, or training 
others. Examples of Job Zone Four occupations include: Sales managers, 
database administrators, and graphic designers. Job Zone Five 
occupations usually require: (1) Graduate school; (2) extensive skill, 
knowledge, and five or more years of experience; and (3) some on-the-
job training, but most of these occupations assume that the person will 
already have the required skills, knowledge, work-related experience, 
and/or training. These occupations often involve coordinating, 
training, supervising, or managing the activities of others. Examples 
of Job Zone Five occupations include: Pharmacists, lawyers, and 
neurologists.\15\
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    \15\ Id.
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B. Procedures for Establishing Job-Zone Values

    OFLC uses the O*NET Job Zone assigned to an occupation to determine 
whether the experience the employer requires meets, exceeds, or falls 
below requirements typical to the occupation in which the employer's 
job opportunity is classified. While O*NET transitions to the 2018 SOC 
occupations, there are many frequently used occupations where the O*NET 
Job Zone is not yet available. Until O*NET completes its transition, 
OFLC will use the following standard procedures to set Job Zone values 
for occupations without O*NET Job Zone data.
    First, when there is an existing O*NET Job Zone for a 2018 SOC 
occupation, OFLC will use the Job Zone from the O*NET 2018 SOC 
occupation.
    Second, when there is no O*NET Job Zone for the 2018 SOC 
occupation, but there is an O*NET Job Zone for the 2010 SOC occupation, 
OFLC will use the Job Zone from the O*NET 2010 SOC occupation.
    Third, when there is no O*NET Job Zone for either the 2018 SOC 
occupation or the 2010 SOC occupation, OFLC will first examine the 
corresponding broad occupation \16\ to

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determine if the broad occupation contains detailed occupations with 
O*NET Job Zones.\17\ OFLC will calculate the Job Zones by averaging the 
O*NET Job Zones of the detailed occupations within the broad 
occupation. For example, since there is neither O*NET Job Zone for 2018 
SOC 11-3013--Facilities Managers nor O*NET Job Zone for 2010 SOC 11-
3011--Administrative Services Manager, OFLC will use the average O*NET 
Job Zones for the Broad Occupation 11-3010--Administrative Services and 
Facilities Managers.
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    \16\ SOC occupations are organized into a tiered system with 
four levels of aggregation: (1) Major group; (2) minor group; (3) 
broad occupation; and (4) detailed occupation. Each lower level of 
detail identifies a more specific group of occupations. The 2018 SOC 
contains 23 major groups, which are broken into 98 minor groups, 459 
broad occupations, and 867 detailed occupations, of the latter of 
which have the highest level of specification. The following is an 
example of the four levels of aggregation: 29-0000 Healthcare 
Practitioners and Technical Occupations (major group); 29-1000 
Healthcare Diagnosing or Treating Practitioners (minor group); 29-
1020 Dentists (broad occupation); and 29-1022 Oral and Maxillofacial 
Surgeons (detailed occupation). See Standard Occupational 
Classification Manual (2018), available at https://www.bls.gov/soc/2018/soc_2018_manual.pdf; see also The O*NET SOC Taxonomy, available 
at https://www.onetcenter.org/taxonomy.html (providing additional 
information on classification).
    \17\ See Updating the O*NET[supreg]-SOC Taxonomy: Incorporating 
the 2018 SOC Structure--Summary and implementation, at 6-7, 
available at https://www.onetcenter.org/dl_files/Taxonomy2019_Summary.pdf.
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    Lastly, where there is no O*NET Job Zone for either the 2018 SOC 
occupation or the 2010 SOC occupation, and the broad occupation does 
not have detailed occupations with O*NET Job Zones, OFLC will calculate 
the Job Zone by averaging the O*NET Job Zone of the detailed 
occupations within the minor group. For example, since the Broad 
Occupation 15-2051--Data Scientists does not have detailed occupations 
with O*NET Job Zones, OFLC will use the average O*NET Job Zones for the 
Minor Group 15-2000--Mathematical Science Occupations.
    OFLC intends to use these standard procedures for occupations that 
do not have O*NET Job Zone data beginning in the July 2022 through June 
2023 wage year when the wages are updated based upon the same BLS 
release cycle.

Angela Hanks,
Acting Assistant Secretary of the Employment and Training 
Administration.
[FR Doc. 2021-24813 Filed 11-12-21; 8:45 am]
BILLING CODE 4510-FP-P