[Federal Register: August 25, 2000 (Volume 65, Number 166)]
[Proposed Rules]
[Page 51777-51779]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr25au00-17]
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DEPARTMENT OF LABOR
Employment and Training Administration
20 CFR Part 656
RIN 1205-AB
Labor Certification Process for the Permanent Employment of
Aliens in the United States
AGENCY: Employment and Training Administration, Labor.
ACTION: Notice of guidelines.
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SUMMARY: The Employment and Training Administration (ETA) is in the
process of reengineering the permanent alien labor certification
process. ETA's goals are to make fundamental changes and refinements
that will: Streamline the process; save resources; improve the
effectiveness of the program; and better serve the Department of
Labor's (Department's) customers. This document will set forth the
general principles which will guide the development of proposed
regulations to effectuate the redesign.
FOR FURTHER INFORMATION CONTACT: Dale M. Ziegler, Chief Division of
Foreign Labor Certifications, Office of Workforce Security, Employment
and Training Administration, Department of Labor, Room C-4318, 200
Constitution Avenue, NW., Washington, DC 20210. Telephone: (202) 693-
3010 (this is not a toll-free number).
SUPPLEMENTARY INFORMATION:
A. Permanent Alien Labor Certification Process
Generally, an individual labor certification from the Department of
Labor (Department) is required for employers wishing to employ an alien
on a permanent basis in the U.S. Before the Department of State (DOS)
and the Immigration and Naturalization Service (INS) may issue visas
and admit certain immigrant aliens to work permanently in the U.S., the
Secretary of Labor must first certify to the Secretary of State and the
Attorney General that:
(a) There are not sufficient U.S. workers who are able, willing,
qualified and available at the time of the application for a visa and
admission into the U.S. and at the place where the alien is to perform
the work; and
(b) The employment of such aliens will not adversely affect the
wages and working conditions of similarly employed U.S. workers. 8
U.S.C. 1182(a)(5)(A).
In brief, the current process for obtaining a labor certification
requires employers to actively recruit U.S. workers in good faith for a
period of at least thirty days for the job openings for which aliens
are sought. The employer's job requirements must conform to the
regulatory standards (e.g., those truly necessary), and employers must
offer prevailing wages and working conditions for the occupation in the
area in which the job is located. Further, employers may not favor
aliens or tailor the job requirements to any particular alien's
qualifications.
During the thirty-day recruitment period, employers are required to
place a three-day help-wanted advertisement in a newspaper of general
circulation, or a one-day advertisement in a professional, trade, or
business journal, or in an appropriate ethnic publication. Employers
are also required to place a thirty-day job order with the local office
of the state employment service in the state in which the employer
seeks to employ the alien. Alternatively, if employers believe they
have already conducted adequate recruitment efforts seeking qualified
U.S. workers at prevailing wages and working conditions through sources
normal to the occupation and industry, they may request the Department
to waive the otherwise mandatory thirty-day recruitment efforts as
prescribed by the Department's regulations governing the program. This
waiver process is generally referred to as involving ``Reduction in
Recruitment'' (RIR) applications. If the employer does not request RIR
processing or if the request is denied, the help-wanted advertisements
which are placed in conjunction with the mandatory thirty-day
recruitment effort direct job applicants to either report in person to
the employment service office or to submit resumes to the employment
service.
Job applicants are either referred directly to the employer or
their resumes are sent to the employer. The employer then has forty-
five days to report to the employment service the lawful, job-related
reasons for not hiring any U.S. worker referred. If the employer hires
a U.S. worker for the job opening, the process stops at that point,
unless the employer has more than one opening, in which case the
application may continue to be processed. If, however, the employer
believes that able, willing and qualified U.S. workers are not
available to take the job, the application together with the
documentation of the recruitment results and prevailing wage
information are sent to one of ten regional offices of the Department.
There, it is reviewed and a determination is made as to whether or not
to issue the labor certification based upon the employer's compliance
with the Department's regulations governing the program. If the
Department determines that there are no able, willing, qualified and
available U.S. workers, and that the employment of the alien will not
adversely affect the wages and working conditions of similarly employed
U.S. workers, the Department so certifies to the INS and the DOS, by
issuing a permanent labor certification. See 30 CFR part 656; see also
section 212(a)(5)(A) of the Immigration and Nationality Act, as amended
(INA)
B. Problems With the Current System
The labor certification process described above has been criticized
as being complicated, costly and time consuming. Due to increases in
the volume of applications received and a lack of adequate resources,
it can take up to two years or more to complete the process for
applications that are filed under the basic process and do not utilize
the more streamlined RIR
[[Page 51778]]
process. The process also requires substantial state and federal
resources to administer and is reportedly costly and burdensome to
employers as well. Cuts in federal funding for both this immigration
program and for the Employment Service have made it difficult for state
and federal administrators to keep up with the process. ETA, therefore,
is taking steps to improve the effectiveness of the various regulatory
requirements and the application processing procedures, with a view to
achieving considerable savings in resources both for the government and
employers, without diminishing significant protections now afforded
U.S. workers by the current regulatory and administrative requirements.
C. Developing a Streamlined Process
The permanent foreign labor certification process for employment-
based immigration in the U.S. has been a two-tiered system involving
both State Employment Security Agencies (SESA) and the U.S. Department
of Labor for more than 30 years. By its very nature there is an element
of redundancy in case processing under this system. As previously
noted, the current system has been criticized for being costly,
burdensome, and inefficient. The redesigned process envisioned by the
Department will require employers to submit their applications directly
to ETA processing centers. The new process will take full advantage of
state-of-the-art technology and the use of policy-driven standards to
minimize manual intervention, and to increase the speed of case
processing at a reduced cost to employers and the government alike. It
is important to note that the description of the redesigned process in
this notice represents the Department's current thinking. This process
may be subject to modifications in response to comments received on
future rulemaking efforts.
The new process under consideration for processing permanent
applications will streamline the role of SESAs in the labor
certification process to include only the prevailing wage
determinations. Employers will no longer be required to conduct a 30-
day job recruitment through the Employment Service. In the current
system, prevailing wage determinations are made by SESAs as part of the
normal process of reviewing an application and informing the employer
of any deficiencies therein. In the new process, the employer will
still be required to obtain a prevailing wage determination from the
SESA. Although the timing of the prevailing wage determination request
will change from a post-filing action to a pre-filing action, this step
is vital in order for the Department to meet its responsibility to make
the statutorily required certification that the employment of the alien
will not have an adverse effect on the wages and working conditions of
similarly employed U.S. workers.
We envision that the new system for processing permanent alien
labor certification applications will be considerably streamlined but
will not materially diminish any of the protections now afforded U.S.
workers by the current regulatory and administrative requirements. The
employer will be required to contact the SESA to obtain the prevailing
wage determination for the occupation in the area of intended
employment. It is envisioned that this procedure will operate in much
the same manner as the one currently being utilized for processing
prevailing wage requests under the H-1B program for nonimmigrant
professionals in specialty occupations. See 20 CFR part 655, subpart H;
see also section 212(n) of the INA. As part of our efforts to take
advantage of technological innovations that will increase efficiencies
in the program, however, we are proposing that the form upon which such
a request is made will be standardized and will be machine-readable to
eliminate the need for data entry by the ETA processing centers when an
application is first received.
Upon receipt of a request for a prevailing wage determination under
the new system, the SESA will evaluate the particulars of the
employer's job offer, such as the job duties and requirements for the
position, and the geographic area in which the job is located. If the
job opportunity is unionized, the wage rate set forth in the collective
bargaining agreement that applies to the position shall be considered
to be the applicable prevailing wage. If the job opportunity is not
unionized, however, as is most often the case, then the SESA will
determine the occupational classification for the job using an
appropriate occupational classification taxonomy such as the
Department's O'Net occupational classification structure. The SESA will
also then determine the area of intended employment for the job
opportunity. As a result of this analysis, the SESA will normally
assign the prevailing wage rate and appropriate skill level for the job
opportunity from the wage component of the Occupational Employment
Statistics (OES) survey, unless a wage determination has been issued
pursuant to the Davis-Bacon Act, 40 U.S.C. 276a et seq. (DBA), or the
McNamara-O'Hara Service Contract Act, 41 U.S.C. 351 et seq. (SCA), in
which case that determination shall form the basis for the prevailing
wage for that job opportunity.
In the absence of a prevailing wage rate derived from the SCA, the
DBA, or an applicable wage rate from a collective bargaining agreement
covering the position, the employer also has the option of submitting
an alternative source of prevailing wage information such as a
published wage survey or other wage data obtained from a survey that
has been conducted or funded by the employer. If the employer chooses
to submit an alternative source of wage data, the SESA will evaluate
such other information (e.g., a published wage survey) and will
determine if it is in compliance with the Department's standards
governing the acceptability of employer-provided wage data such as the
validity of the statistical methodology employed. If the employer-
provided wage data is found to be acceptable, the specific wage rate
derived from that source that applies to the employer's job
opportunity, taking into consideration such factors as the appropriate
occupational classification, geographic area, and level of skill, will
be considered to be the prevailing wage rate for purposes of that
particular job opportunity. If the employer-provided wage data is not
accepted, the SESA will inform the employer of the reasons why the
survey is unacceptable. The Department is contemplating the
establishment of a process to review employer appeals of determinations
made by SESAs, such as a determination that an employer-provided wage
survey is unacceptable.
The SESA's response to the employer's request will be in writing on
the same standardized form through which the request was initially
made. The response will indicate the prevailing wage rate for the job
opportunity, the source of such information, and the appropriate
occupational classification and level of skill applied in the
determination to arrive at that rate.
The employer will also be required to conduct an adequate test of
the labor market for qualified U.S. applicants at prevailing wages and
working conditions through sources normal to the occupation and
industry during the 6-month period preceding the filing of the
application. We currently foresee that the recruitment efforts will
consist of both mandatory steps and alternative steps chosen by the
employer from a listing of additional recruitment steps that will be
specifically prescribed by
[[Page 51779]]
the regulations. We intend to outline the specific recruitment steps
required, including those that will be considered acceptable as
alternative steps. The required recruiting efforts will be similar to
the RIR process under the existing system in that all recruitment will
be conducted prior to the employer filing the application. This up-
front recruitment system will be required of all applicants under the
new system. Regardless of the steps chosen by the employer to fulfill
its obligation to conduct an adequate test of the labor market, the
employer will be required to maintain documentation of the recruitment
efforts it has undertaken and the results thereof, such as the lawful,
job-related reasons for not hiring U.S. applicants for the position.
After the recruitment period has ended and the employer has
assembled the requisite documentation in support of the application,
the employer then submits the application directly to an ETA processing
center. In developing the application form to be used in the new
system, as with the proposed prevailing wage request form, we intend to
take every advantage of technological innovations that will increase
efficiencies in the program. Therefore, it is expected that the labor
certification application will also be machine-readable or directly
completed in a web-based environment to eliminate the need for time-
consuming data entry by ETA processing centers. Applications will be
received by facsimile transmission, by mail, or via internet and will
be subject to an initial acceptability check to ensure that the
application can be processed. The purpose of this test is to ensure
that the form can be recognized by an automatic scanning/data selection
process. The acceptability test will consist of ensuring that a
completed application form has been received, including the prevailing
wage determination form issued by a SESA. Further, this initial test
will determine whether the application is readable or scannable
depending on the method of submission. For instance, if the application
is submitted by mail it will not be acceptable if it is too crumpled,
stained or damaged to be scanned into the system. The application will
also be unacceptable if it cannot be read by the computer system due to
transmission errors on facsimile transmissions or other reasons such as
illegible writing. As noted above, the Department is also contemplating
the future use of advanced technologies to allow applications to be
submitted and processed under a web-based system.
After an application has been determined to be acceptable for
filing, a computer system will review it based upon various selection
criteria or ``flags'' that will allow more problematic applications to
be identified for an in-depth review or audit. In addition, it is
anticipated that some applications will be randomly selected for an
audit without regard to the results of the computer analysis as a
quality control measure. If no request for an audit has been triggered
by the information provided on the application nor via random
selection, the application will be immediately certified and returned
to the employer, who may then submit the certified application to the
INS in support of an employment-based I-140 petition. It is anticipated
that if an application is not selected for an audit, an employer will
have a computer-generated certification decision within seven to
twenty-one working days of the date the application was initially
submitted.
If an application has been flagged for an audit, the employer will
be notified and required to submit in a timely manner documentation
verifying the information stated in or attested to on the application.
Upon timely receipt of an employer's audit documentation, the scanned
application would be electronically distributed to an ETA regional
office where a case analyst would conduct an audit, as determined by
the regional certifying officer.
After an audit has been completed, we currently envision three
potential actions the certifying officer can take on the application:
Certification; denial; or supervised recruitment. If the audit
documentation is complete and consistent with the employer's statements
and attestations contained in the application, the application will be
certified and returned to the employer. If the audit documentation is
not complete, is inconsistent with the employer's statements and/or
attestations contained in the application, or is otherwise deficient in
some material respect, the application will be denied and a
notification of denial with the reasons therefor will be issued to the
employer. We anticipate that if an application is denied by the
regional certifying officer, the employer will have an opportunity for
an administrative review of the decision. Lastly, on any application
selected for an audit regardless of the reason for such selection, the
regional certifying officer will have the authority to conduct
supervised recruitment for the employer's job opportunity in any case
where serious questions arise regarding the adequacy of the employer's
test of the labor market.
Where supervised recruitment is required by the regional certifying
officer, we expect that the procedure will operate much like the
current non-RIR regulatory recruitment scheme under the basic process,
except that the recruitment efforts would be directed by the regional
certifying officer and would not be directed by the SESA, as is the
case under the current system. See Sec. 656.24(g) for detailed
information concerning the recruitment efforts required under the
existing basic alien labor certification process. At the completion of
the supervised recruitment efforts, the employer will be required to
document that such efforts were unsuccessful, including the lawful,
job-related reasons for not hiring any U.S. workers who applied for the
position. After a review of the employer's documentation, the regional
certifying officer will either certify or deny the application. In all
instances in which an application is denied, the denial notification
will set forth the deficiencies upon which the denial is based.
Upon the implementation of the new system outlined in this document
and subject to public comment in future rulemaking, the Department
believes that a number of key criticisms of the current program, such
as its cost, timeliness, and complexity, will have been resolved or
mitigated to the extent practicable. The Department is continuing to
monitor operating procedures at all levels to determine whether further
efficiencies can be made that would improve the balance between meeting
employers' legitimate needs for foreign workers with our obligation to
both protect jobs for U.S. workers and protect against adverse effects
on the U.S. labor force.
Signed at Washington, DC, this 17th day of August, 2000.
Ray Bramucci,
Assistant Secretary for Employment and Training.
[FR Doc. 00-21733 Filed 8-24-00; 8:45 am]