# Labor Certification for the Permanent Employment of Aliens in the United States; Implementation of New System

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URL: https://www.frixlaw.com/law-library/documents/fr%3A02-10570

## Record

- **Collection:** Federal Register
- **Document type:** Proposed Rule
- **Published:** May 6, 2002
- **Citation:** 67 FR 30466

## Text

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.

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 § 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 § 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.

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

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 résumés 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 § 656.5(a)(1) (currently § 656.10(a)(2)) to the procedures at § 656.15(c)(2)

(currently § 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 § 656.3 in the current rule, to the section providing a general description of
Schedule A,
at § 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 § 656.21 of the current regulations.

D. General Instructions

1. Expansion of Posting Requirement

The posting regulation at § 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

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 § 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.

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

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 § 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

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 § 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

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 § 656.24(b)(2)(i) and (iii) of the current regulations. Under § 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).

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 § 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 § 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 § 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 § 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 § 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

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 § 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 § 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.

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

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 § 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

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 § 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 § 655.731(a)(2)(iii)(B) and (C) of the H-1B regulations. See also § 655.731(b)(3). Thus we are proposing changes to the H-1B regulations similar to the ones we are proposing to § 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 § 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 § 656.49(a)(2)(i), and the H-1B regulations at §§ 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 § 656.41.

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 § 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 § 656.40 of the permanent labor certification regulations, and under § 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 § 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 § 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 § 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 § 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

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

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A02-10570. Public record. Not legal advice.