REFORMING THE LABOR
CERTIFICATION PROCESS
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Date: October 1, 1996
Directive: General Administrative Letter No. 1-97
To: All State Employment Security Agencies
From: Barbara Ann Farmer
Administrator for Regional Management
Subject: Measures for Increasing Efficiency in the Permanent Labor
Certification Process
1. Purpose. To provide procedural guidance to State Employment Security
Agencies (SESAs) and Regional Offices for increasing efficiency in the
permanent labor certification process under current regulations in order to
handle increasing workload with declining staff resources.
2. Reference. 20 CFR Part 656, Technical Assistance Guide (TAG) No. 656
Labor Certifications, and GAL No. 15-95.
3. Background. Over the past 18 months, the Employment and Training
Administration (ETA) has been considering proposals for reengineering the
permanent labor certification process in order to increase efficiency in
processing, reduce costs, increase protections for U. S. workers, and
provide better customer service. To fully achieve all of these
reengineering objectives, legislative and/or regulatory changes to the
current labor certification process are required. The prospect for
legislative changes is speculative, at best, and modification of
the regulations could take many months to effectuate.
Currently, ETA and SESAs are experiencing increasing workloads and
declining staff resources to process labor certification applications.
Therefore, to the extent feasible, ETA must institute measures to increase
efficiency which are achievable under current regulations in order to
reduce large backlogs and make decisions in a timely manner.
4. Action Required. Administrators are requested to:
A. Provide the attached policy and procedural guidance to
appropriate staff.
B. Insure that appropriate staff attend training conducted by the
appropriate regional office prior to implementation of these measures.
C. Instruct alien labor certification staff to implement the measures for
increasing efficiency and follow the procedures in processing permanent
labor certification applications.
D. Apply these procedures to applications when processing begins on or
after the effective date of this GAL.
5. Effective Date. October 1, 1996
6. Inquiries. Direct questions to the appropriate Regional Certifying
Officer.
7. Attachment. Increasing Efficiency in the Permanent Labor Certification
Process.
Attachment To GAL No. 1-97
Increasing Efficiency In The
Permanent Labor Certification Process
A. Introduction
In order to increase efficiency, the measures below shall be implemented
under current regulations at 20 CFR 656 by Regions and State Employment
Security Agencies (SESAs) on October 1, 1996. These measures are designed
to significantly reduce U.S. worker referrals on jobs that are tailored
around the qualifications of aliens, to reduce SESA and regional office
backlogs, and to allow regions and SESAs to handle increasing workloads in
a timely manner with fewer staff.
To promote consistency among Regions and SESAs, operating procedures have
been provided for handling applications involving unduly restrictive job
requirements, reduction in recruitment, and limited review processing.
Depending on local situations, other efficiency measures may be implemented
by the Regional Certifying Officer.
B. Measures to Increase Efficiency
1. Unduly Restrictive Job Requirements
The SESA should not authorize recruitment to commence on applications which
contain restrictive job requirements, or requirements which did not exist
before the alien was hired. Applications where the employer
refuses to remove such requirements will be sent immediately to the
Certifying Officer for processing in the order they are received
along with other applications. Employers who do not wish to delete the
restrictive requirement will be requested by the SESA to submit
documentation of business necessity which will be included in the
transmittal to the Certifying Officer. The business necessity justification
should address the job opportunity as described in the application as it
existed prior to the hiring of the alien. If this is not the case, the employer
should document that a major change in its business operation caused the
position to be created after the alien was hired. Jobs which did not exist
before the alien was hired will be considered jobs that are not truly open
to U.S. workers, unless the employer can clearly demonstrate that a major
change in the business operation caused the position to be created after the
alien was hired.
2. Reduction in Recruitment Requests (RIRs)
Regions and SESAs will encourage reduction in recruitment requests on
applications:
- for occupations for which there is little or no availability,
- which have no restrictive requirements,
- which meet prevailing wage,
- and for which the employer can show adequate recruitment through sources
normal to the occupation and industry within the previous 6 months.
RIR requests will be given expedited processing by SESAs and Regional
Offices.
3. Notice of Findings (NOF) Extensions
After issuing a NOF, Certifying Officers will grant only one extension of
time beyond the initial 35 days in which the employer can file a rebuttal.
The extension may be granted up to 35 days. Further extensions will not be
granted.
4. Harmless Error
Certifying Officers will have the discretion to excuse a harmless error on
the part of the employer to fully comply with the regulations if the
Certifying Officer determines that the labor market was sufficiently tested
to warrant a finding that qualified U.S. workers are not available for the
job opportunity and employment
of the alien will not adversely effect wages and working conditions of U.S.
workers similarly employed. A finding of harmless error will be made by the
Certifying Officer on a case-by-case basis and no finding sets a precedent
for another case.
5. Limited Review Processing
Certifying Officers may work with their SESAs to set up a system to
identify and flag applications that are ready for transmittal to the region
and apparently have no processing problems. Such applications may not have
special job requirements, unusual job duties, applicant availability, or
wage issues. Based on the recommendation of the SESA, such cases will
generally be approved as they are received in the region with minimal
review. For quality control purposes, a small number of cases in various
occupations will be randomly selected for a more extensive review.
6. Resume Screening
Because all job requirements will have been thoroughly evaluated prior to
recruitment, SESA staff shall screen resumes of U.S. workers only against
the accepted job requirements. Only those resumes of fully qualified applicants
shall be sent to the employer and to the regional office. Recruitment on an
application will cease after it is forwarded to the Regional Office. Late
resumes may be sent to employers having similar job offers or returned to
applicants. After labor certification has been issued, resumes will be
discarded. Regions shall retain resumes of qualified applicants when a NOF
or Final Determination has been issued.
7. Standardized Recruitment
When the Certifying Officer requires the employer, through a NOF, to
recruit again because of deficiencies in the first recruitment, the
employer shall be instructed to place a 1-day Sunday advertisement in an
appropriate newspaper of general circulation. The ad must run in
conjunction with a 10-day job order placed by the SESA. This reduced level
of recruitment may not be used by employers who have never recruited for
the position, or when the Certifying Officer has determined that a trade or
professional journal is the most appropriate advertising medium.
8. Advertisements
Because the SESA will not have sufficient time to review a draft ad once a
job order has been placed, SESAs are only required to assist in drafting
the text or
reviewing a draft ad for accuracy if the ad is submitted with an initial or
resubmitted application.
9. Applicant Questionnaires
Because of budgetary constraints at the SESAs and Regional Offices, SESAs
should no longer send questionnaires to U.S. workers who were interviewed
as the result of the labor certification process.
C. Operating Procedures
1. Unduly Restrictive Job Requirements
a. The SESA will review each permanent labor certification application to
determine if there are any unduly restrictive requirements.
b. The SESA will notify the employer of any unduly restrictive
requirements and inform the employer that recruitment will not commence
until the employer removes the restrictive requirement. If the employer is
unwilling to remove the requirement, the employer should submit appropriate
documentation of business necessity.
Employers will be instructed to provide information requested by the SESA
within 45 days of the date of the request. If complete information is not
received within 45 days, the application will be returned to the employer.
If it is refiled, it will be treated as a new application with the original
date of receipt deleted and replaced with the refiling date.
c. The SESA will also request, as part of the business necessity
documentation, that the employer provide documentation to show that the job
existed and was previously filled at the same requirements before the alien
was hired. The employer may submit documentation including but not limited
to position descriptions, organizational charts and payroll records, etc.
Alternatively, the employer may show that there was a major change in the
business operation which caused the job to be created after hiring the
alien.
d. The SESA shall inform the employer that, in the event the requirements
are not removed as requested by the SESA, the application, documentation,
and business necessity justification will be forwarded to the region for
review in the order that it is received along with other applications.
e. The Certifying Officer shall remand the application to the SESA for
full recruitment if the business necessity justification is acceptable. The
application will be given expedited processing at the SESA and at the
regional office following the recruitment.
f. The Certifying Officer will issue a Notice of Findings (NOF) on the
application if the business necessity justification is not acceptable.
g. If the rebuttal to the NOF is satisfactory, the application will be
remanded to the SESA for full recruitment. The application will be given
expedited processing at the SESA and at the regional office following the
recruitment.
h. If the rebuttal is not acceptable, a Final Determination denying the
application will be sent to the employer.
2. Reduction in Recruitment Requests (RIRs)
a. An employer may file a reduction in recruitment request for any
occupation, except those listed on Schedule B, if the employer can show
that an adequate test of the labor market has occurred at prevailing wages
and working conditions through sources normal to the occupation and
industry within the previous 6 months.
b. SESAs and Certifying Officers will encourage requests for reduction in
recruitment in occupations with little or no availability and in
circumstances as determined by individual Certifying Officers.
c. Upon receiving an employer's written request for a reduction in
recruitment, the SESA shall review the application for completeness and
determine the appropriate prevailing wage.
d. The SESA shall return the application to the employer for correction
and/or additional information if there are deficiencies in the application,
such as inadequate wage offer or restrictive job requirements.
e. When there are deficiencies in the application that would have
affected the recruitment, the SESA should advise the employer that it is
unlikely that the Certifying Officer will approve an RIR and suggest that
the employer recruit through the regular process. However, the SESA may not
discourage the use of RIR nor refuse to transmit a written request for an
RIR to the Certifying Officer.
f. When transmitting the RIR to the Certifying Officer, the SESA should
include a recommendation, based on its knowledge of the labor market, for
or against granting the request.
g. The RIR will be given expedited processing at the region if it
contains no deficiencies. Those with deficiencies identified by the SESA
shall be processed in the order that they are received along with other
applications.
h. Among the factors to be considered by the Certifying Officer in making
determinations on RIRs pursuant to section 20 CFR 656.24 are the following:
* Adequacy of the recruitment conducted by the employer applicant,
e.g., newspaper advertising, job fairs, internet.
* Documentation of normal recruitment practices in the industry and
occupation furnished by the employer.
* Availability of U.S. workers for the occupation involved in the
employer's application for which recruitment has been conducted
through the SESA in the past, as shown by ES referrals to job orders.
* SESA recommendations/comments.
* Certifying Officer's knowledge of the local labor market.
If RIR is denied because the recruitment is not acceptable, the
application shall be returned to-the SESA for regular processing in the
order in which it is received along with other applications.
i. If the RIR request contains deficiencies, such as inadequate wage offer
or restrictive job requirements, the Certifying Officer shall issue a NOF
denying the RIR and citing the deficiencies.
3. Limited Review Processing
a. At his or her discretion, the Certifying Officer, may establish a
process for making expedited determinations on applications based on the
recommendations of the SESA. Such SESA recommendations must be in
accordance with guidelines established in advance by the Certifying
Officer.
b. Limited review processing shall apply to applications which offer the
prevailing wage, have no special requirements or job duties, do not exceed
the Specific Vocational Preparation level assigned to the job, and have no
applicant availability or a few applicants who clearly do not meet the
job's requirements.
c. Applications may be designated for limited review processing only
after completion of recruitment. The SESA will assemble an application
package for Regional processing as follows and affix a limited review
("LR") to the file:
* One copy of the ETA 7147 - State Agency Transmittal
* One copy of the G-28 - Notice of Appearance of Attorney
* Two sets of the ETA 750, Parts A & B, for Alien Employment
Certification and one back-up copy of Part B
* One copy of correspondence and other documentation
* One copy of the SESA Job Order
* One copy of the Internal Job Posting
* One copy of all three Advertisements
* One copy of the Recruitment Results
* One copy of the Resumes
d. For the most part, applications which meet limited review criteria
will be expedited for approval when they are received in the Regional
Office. Some applications will be randomly selected for review for quality
control and SESA training purposes.
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