Labor Department's Proposed
PERM Regulations
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[Federal Register: May 6, 2002 (Volume 67, Number 87)]
[Proposed Rules]
[Page 30465-30521]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr06my02-18]
[[Page 30465]]
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Part V
Department of Labor
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Employment and Training Administration
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20 CFR Parts 655 and 656
Labor Certification for the Permanent Employment of Aliens in the
United States; Implementation of New System; Proposed Rule
[[Page 30466]]
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DEPARTMENT OF LABOR
Employment and Training Administration
20 CFR Parts 655 and 656
RIN 1205-AA66
Labor Certification for the Permanent Employment of Aliens in the
United States; Implementation of New System
AGENCIES: Wage and Hour Division, Employment Standards Administration,
and Employment and Training Administration, Labor.
ACTION: Proposed rule; request for comments.
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SUMMARY: The Department of Labor is proposing to amend its regulations
governing the filing and processing of labor certification applications
for the permanent employment of aliens in the United States to
implement a new system for filing and processing such applications. The
proposed rule would also amend the regulations governing the employer's
wage obligation under the H-1B program. The new system would require
employers to conduct recruitment before filing their applications
directly with an ETA application processing center on application forms
designed for automated screening and processing. State Workforce
Agencies (SWA's) would provide prevailing wage determinations to
employers. Employers would be required to place a job order with the
SWA which would be processed the same as any other job order placed by
employers. SWA's would no longer be the intake point for submission of
applications and would not be involved in processing the applications
as they are now in the present system. The combination of prefiling
recruitment, automated processing of applications, and elimination of
the role of the SWA's in the processing of applications will yield a
large reduction in the average time needed to process labor
certification applications and are expected to eliminate the need to
periodically institute special, resource intensive efforts to reduce
backlogs which have been a recurring problem.
DATES: Interested persons are invited to submit written comments on the
proposed rule on or before July 5, 2002.
ADDRESSES: Submit written comments to the Assistant Secretary for
Employment and Training, U.S. Department of Labor, 200 Constitution
Avenue, NW., Room C-4318, Washington, DC 20210, Attention: Dale
Ziegler, Chief, Division of Foreign Labor Certifications.
FOR FURTHER INFORMATION CONTACT: Denis M. Gruskin, Senior Specialist,
Division of Foreign Labor Certifications, Employment and Training
Administration, 200 Constitution Avenue, NW., Room C-4318, Washington,
DC 20210. Telephone: (202) 693-2953 (this is not a toll free number).
SUPPLEMENTARY INFORMATION:
I. Background
The process for obtaining a permanent labor certification has been
criticized as being complicated, time consuming and requiring the
expenditure of considerable resources by employers, SWA's and the
Federal Government. It can take up to two years or more to complete the
process for applications that are filed under the basic process and do
not utilize the more streamlined reduction in recruitment (RIR)
process. The reduction in recruitment process allows employers that
request RIR processing to conduct recruitment before filing their
applications and these applications are evaluated on the basis of such
recruitment.
The redesigned system we envision would require employers to
conduct recruitment before filing their applications. Employers would
be required to conduct both mandatory and alternative recruitment
steps. The alternative steps would be chosen by the employer from a
list of additional recruitment steps in the regulations. The employer
would not be required to submit any documentation with its application,
but would be expected to have assembled supporting documentation
specified in the regulations and would be required to provide it in the
event its application is selected for audit.
Employers would be required to submit their applications on forms
designed for automated processing to minimize manual intervention to an
ETA application processing center for automated screening and
processing. After an application has been determined to be acceptable
for filing, an automated system would review it based upon various
selection criteria that would allow applications to be identified for
potential audits before determinations could be made. In addition, some
applications would be randomly selected as a quality control measure
for an audit without regard to the results of the computer analysis.
A complete application would consist of two forms. An Application
for Permanent Labor Certification form (ETA Form 9089) and a Prevailing
Wage Determination Request (PWDR) form (ETA Form 9088). The application
form would require the employer to respond to 56 items. The majority of
the items on the application form would consist of attestations which
would require the employer to do no more than check ``yes'', ``no'', or
``NA'' (not applicable) as a response. These attestations and other
information required by the application form elicit information similar
to that required by the current labor certification process. For
example, the employer will have to attest to, such items as: whether
the employer provided notice of the application to the bargaining
representative or its employees; whether the alien beneficiary gained
any of the qualifying experience with the employer; whether the alien
is currently employed by the employer; whether a foreign language
requirement is required to perform the job duties; and whether the U.S.
applicants were rejected solely for lawful job related reasons. (The
term ``applicant'' is defined at Sec. 656.3 as an U.S. worker who is
applying for a job opportunity for which an employer has filed an
Application for Permanent Labor Certification (ETA Form 9089). The term
``U.S. Worker'' is also defined at Sec. 656.3.) The wage offered on the
application form would be required to be to equal to or greater than
the prevailing wage determination entered by the SWA on the PWDR form
described below. Comments are requested on ETA forms 9088 and 9089
which are published at the end of this NPRM.
The application form, however, would not require the employer to
provide a job description, or detailed job requirements. The job
description and job requirements would be entered on the PWDR form,
which the employer would be required to submit to the SWA for a
prevailing wage determination. The SWA would enter its prevailing wage
determination on the form and return it to the employer with its
endorsement. The employer would be required to submit both forms to an
ETA servicing office for processing and a determination.
The employer would not be required to provide any supporting
documentation with its application but would be required to furnish
supporting documentation to support the attestations and other
information provided on the form if the application was selected for an
audit. The standards used in adjudicating applications under the new
system would be substantially the same as those used in arriving at a
determination in the current system.
[[Page 30467]]
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
[[Page 30468]]
findings for one or more reasons, including:
(a) The employer has not adequately recruited U.S. workers for the
job offered to the alien, or has not followed the proper procedural
steps in 20 CFR part 656.
(b) The employer has not met its burden of proof under section 291
of the Immigration and Nationality Act (INA or Act.) (8 U.S.C. 1361),
that is, the employer has not submitted sufficient evidence of its
attempts to obtain available U.S. workers, and/or the employer has not
submitted sufficient evidence that the wages and working conditions
which the employer is offering will not adversely affect the wages and
working conditions of similarly employed U.S. workers.
III. Current Department of Labor Regulations
The Department of Labor has promulgated regulations, at 20 CFR part
656, governing the labor certification process for the permanent
employment of immigrant aliens in the United States. Part 656 was
promulgated under section 212(a)(14) of the INA (now at section
212(a)(5)(A)). 8 U.S.C. 1182(a)(5)(A).
The regulations at 20 CFR part 656 set forth the factfinding
process designed to develop information sufficient to support the
granting or denial of a permanent labor certification. These
regulations describe the nationwide system of public State Workforce
Agency offices available to assist employers in finding available U.S.
workers and how the factfinding process is utilized by DOL as the basis
of information for the certification determination. See also 20 CFR
parts 651 through 658, and the Wagner-Peyser Act (29 U.S.C. Chapter
4B).
Part 656 also sets forth the responsibilities of employers who
desire to employ immigrant aliens permanently in the United States.
Such employers are required to demonstrate that they have attempted to
recruit U.S. workers through advertising, through the Federal-State
Employment Service/One-Stop System, and by other specified means. The
purpose of the recruitment process is to assure that there is an
adequate test of the availability of U.S. workers to perform the work
and to ensure that aliens are not employed under conditions that would
adversely affect the wages and working conditions of similarly employed
U.S. workers.
In brief, the current process for obtaining a labor certification
requires employers to actively recruit U.S. workers in good faith for a
period of at least 30 days for the job openings for which aliens are
sought. The employer's job requirements must conform to the regulatory
standards (e.g., those normally required for the job), and employers
must offer prevailing wages and working conditions for the occupation
in the area in which the job is located. Further, employers may not
favor aliens or tailor the job requirements to any particular alien's
qualifications.
During the 30-day recruitment period, employers are required to
place a three-day help-wanted advertisement in a newspaper of general
circulation, or a one-day advertisement in a professional, trade, or
business journal, or in an appropriate ethnic publication. Employers
are also required to place a 30-day job order with the local office of
the State Workforce Agency in the state in which the employer seeks to
employ the alien. Alternatively, if employers believe they have already
conducted adequate recruitment efforts seeking qualified U.S. workers
at prevailing wages and working conditions through sources normal to
the occupation and industry, they may request a waiver of the otherwise
mandatory 30-day recruitment efforts. This waiver process is generally
referred to as involving ``Reduction in Recruitment'' applications. If
the employer does not request RIR processing or if the request is
denied, the help-wanted advertisements which are placed in conjunction
with the mandatory thirty-day recruitment effort direct job applicants
to either report in person to the State Workforce Agency office or to
submit resumes to the State Workforce Agency.
Job applicants are either referred directly to the employer or
their resumes are sent to the employer. The employer then has 45 days
to report to the State Workforce Agency the lawful, job-related reasons
for not hiring any U.S. worker referred. If the employer hires a U.S.
worker for the job opening, the process stops at that point, unless the
employer has more than one opening, in which case the application may
continue to be processed. If, however, the employer believes that able,
willing and qualified U.S. workers are not available to take the job,
the application, together with the documentation of the recruitment
results and prevailing wage information, are sent to one of the
Department's regional offices. There, it is reviewed and a
determination is made as to whether or not to issue the labor
certification based upon the employer's compliance with the regulations
governing the program. If the Department of Labor determines that there
are no able, willing, qualified and available U.S. workers, and that
the employment of the alien will not adversely affect the wages and
working conditions of similarly employed U.S. workers, we so certify to
the INS and the DOS, by issuing a permanent labor certification. See 20
CFR part 656; see also section 212(a)(5)(A) of the Immigration and
Nationality Act, as amended (INA).
IV. Discussion of Regulatory Amendments
A. Definitions
We have made several changes to the definitions of the terms used
in part 656. With the exception of the change of the definition of the
term ``employer,'' substantive changes in definitions are discussed
along with substantive changes in the relevant regulatory provisions.
The definition of employer would be amended to reflect the
longstanding policy articulated in Technical Assistance Guide No. 656
Labor Certifications, issued in 1981 that:
Persons who are temporarily in the United States, such as
foreign diplomats, intracompany transferees, students, exchange
visitors, and representatives of foreign information media cannot be
employers for the purpose of obtaining a labor certification for
permanent employment; and
Job opportunities consisting solely of job duties that
will be performed totally outside the United States, its territories or
possessions cannot be the subject of a permanent application for alien
employment certification.
B. Schedule A
1. General
Schedule A is a list of occupations for which DOL has precertified
job opportunities, having made determinations that qualified U.S.
workers are not able, willing, and available, and that alien employment
will not adversely affect the wages and working conditions of similarly
employed U.S. workers. See 20 CFR 656.10 and 656.22. Certification
applications are filed with INS or the Department of State, and those
agencies determine whether an individual application has been
precertified by DOL.
2. Professional Nurses
We have conformed the general description of aliens seeking
Schedule A labor certification as professional nurses at
Sec. 656.5(a)(1) (currently Sec. 656.10(a)(2)) to the procedures at
Sec. 656.15(c)(2)
[[Page 30469]]
(currently Sec. 656.22(c)(2)) to indicate that only a permanent license
can be used to satisfy the alternative requirement to passing the
Commission on Graduates of Foreign Nursing Schools exam that the alien
hold a full and unrestricted license to practice professional nursing
in the State of intended employment. INS has informed us that it has
received applications with temporary licenses or permits filed as
supporting documentation to Schedule A applications. Our intent in
promulgating the current Schedule A procedures for professional nurses
was to put an end to the pre-1981 practice whereby some nurses entered
the United States on temporary licenses and permits, but failed to pass
State examinations for a permanent license. As we have stated with
respect to this issue, ``it is not in the public interest to grant
certification to nurses who will not be able to practice their
profession or who will likely limit or otherwise adversely affect the
wages or job opportunities for U.S. workers in lower-skilled jobs.'' 45
FR 83926, 83927 (December 19, 1980); see also 20 CFR 656.22(c)(2)
(1991).
To be consistent with the description of the other occupational
groups on Schedule A, the definition of professional nurse would be
moved from the section containing the definitions, at Sec. 656.3 in the
current rule, to the section providing a general description of
Schedule A, at Sec. 656.5 in the proposed rule.
3. Aliens of Exceptional Ability In the Performing Arts
The amendments would remove aliens of exceptional ability in the
performing arts from the special handling procedures and include them
on Schedule A as a separate category. The employer or the alien will
have to submit to INS the documentation currently required by 20 CFR
656.21a(a)(1)(iv)(A)(1) through (a)(1)(iv)(A)(6) of the current
regulations. Current recruitment requirements consisting of an
advertisement or a statement from the union, if customarily used as a
recruitment source in the area or industry, will no longer be required.
As a practical matter, under 20 CFR 656.21a, once we determined that an
alien was of exceptional ability in the performing arts, certification
was issued in virtually all such cases. INS can make this determination
as readily as DOL. Such determinations are similar to determinations
Immigration Officers make for aliens of exceptional ability in the
sciences and arts under Group II of Schedule A. In both cases a
determination has to be made whether or not the alien's work during the
past year and intended work in the United States will require
exceptional ability.
Aliens of exceptional ability in the sciences or arts comprise
Group II of Schedule A. We have delegated the determination whether an
alien beneficiary of a labor certification application qualifies for
Schedule A to the Immigration and Naturalization Service (INS).
Schedule A applications are filed with the INS; not with the Department
of Labor. The current and proposed regulations provide that the
Schedule A determination of the INS shall be conclusive and final.
Therefore the employer may not make use of the administrative review
procedures in Part 656. The INS, however, in the process of making its
Schedule A determination may request an advisory opinion as to whether
an alien is qualified for the Schedule A occupation from the Division
of Foreign Labor Certifications.
We have also concluded, based on the small number of applications
submitted on behalf of aliens of exceptional ability in the performing
arts and experience in evaluating the required recruitment reports
submitted in conjunction with such applications, that there are few
performing artists, whether alien beneficiaries or U.S. workers, who
can satisfy the standards to qualify as an alien of exceptional ability
in the performing arts as defined in the regulations. Consequently, the
admission of the few aliens who may qualify as aliens of exceptional
ability in the performing arts will not have an adverse effect on the
wages and working conditions of U.S. performing artists.
C. Schedule B
Schedule B is a list of occupations for which we determined that
U.S. workers are generally able, willing, qualified and available, and
that the wages and working conditions of United States workers
similarly employed will generally be adversely affected by the
employment of aliens in the United States in such occupations. (See 20
CFR 656.11(a) and 23(a) and (b)). The current regulations require that
a waiver must be obtained to receive certification of Schedule B jobs.
A request for a waiver must be filed along with the application to
obtain a certification for an occupation listed on Schedule B.
We propose to eliminate Schedule B, because program experience
indicates that it has not contributed any measurable protection to U.S.
workers. Once an employer files a Schedule B waiver, the application is
processed the same as any other application processed under the non-
RIR, basic process. Whether or not an application for a Schedule B
occupation is certified is dependent on the results of the basic labor
market test detailed in Sec. 656.21 of the current regulations.
D. General Instructions
1. Expansion of Posting Requirement
The posting regulation at Sec. 656.10(d)(ii) in the proposed rule
has been expanded to require in addition to a posting a notice of the
Application for Permanent Labor Certification (ETA Form 9089), that the
employer must publish the posting in any and all in-house media,
whether electronic or printed, in accordance with the normal procedures
generally used in recruiting for other positions in the employer's
organization. Employers must also be prepared to provide documentation
of the posting requirements in the event of an audit.
2. Ability to Pay and Place the Alien on the Payroll
The current regulations and Application for Alien Employment
Certification form (ETA 750) require that the employer document that it
``has enough funds available to pay the wage or salary offered the
alien'', and that ``(t)he employer will be able to place the alien on
the payroll on or before the date of the alien's proposed entrance into
the United States''. We propose to eliminate these provisions from the
regulations and the Application for Alien Employment Certification
form, since our examination of these issues is a duplication of the
examination of the employer's financial standing and the ability to
place the alien on the payroll undertaken by the INS when it processes
the employer's petition. Moreover, these provisions are also
unnecessary because the underlying issues could still be addressed
because we are proposing to retain the provision in the current
regulations that ``(t)he job opportunity has been and is clearly open
to any qualified U.S. worker.'' If the employer is not in a position to
pay the alien and/or place him or her on the payroll, it is not
offering a job opportunity that is clearly open to U.S. workers.
E. Fees
The Appendix to the FY 2001 Budget of the United States states that
``(l)egislation will be proposed that would authorize the Secretary of
Labor to collect fees from employers for the certification of certain
aliens as eligible workers under the Immigration and Nationality Act.''
Although specific legislation has not been proposed to
[[Page 30470]]
implement the fee charging language in the President's budget, the
proposed rule contains a provision outlining how fee charging would be
implemented if it becomes law. If this occurs, the final rule would
require employers to submit a fee with their applications. A charge of
$30.00 would be imposed if a check in payment of the fee is not honored
by the financial institution on which it is drawn. The existence of any
outstanding ``insufficient funds'' checks would be grounds for
returning applications for alien employment certification to the
employer as unacceptable for processing. Receipt of any ``insufficient
funds'' checks while the application is being processed would be
grounds for denying the application. Receipt of any ``insufficient
funds'' checks after an application has been certified would be grounds
for revoking the certification. If an application is returned to the
employer because it was incomplete, the employer would be able to
request a refund of the fee or resubmit the application.
Fees would also be required for Schedule A and Sheepherder
applications which are submitted to INS for adjudication.
If legislation authorizing the Secretary of Labor to collect fees
from employers for the certification of immigrant workers is not passed
by the time a Final Rule is to be published, the proposed fee
provisions will not be included in the Final Rule.
F. Applications for Labor Certification for Schedule A Occupations
1. PWDR Required to File Schedule A Applications With INS
Employers would be required to submit the required processing fee,
a completed PWDR endorsed by the SWA, and a completed Application for
Alien Employment Certification form to the appropriate INS office. The
current Application for Alien Employment Certification form (ETA 750)
requires employers to enter the offered rate of pay and to certify that
the wage offered equals or exceeds the prevailing wage. Since the
application form no longer contains the offered wage, employers would
be required to submit a completed and endorsed PWDR as well as the
application form in Schedule A cases to the appropriate INS office.
2. Aliens of Exceptional Ability in the Performing Arts
As explained above, the proposed rule would remove aliens of
exceptional ability in the performing arts from the special handling
procedures and include them on Schedule A and the documentation
currently required by 20 CFR 656.21a(a)(1)(iv)(A)(1) through
(a)(1)(iv)(A)(6) of the regulations would be required to be submitted
to INS by the employer or the alien beneficiary.
G. Labor Certification Applications for Sheepherders
Procedures for filing applications for Sheepherders in the current
regulations are in the special handling procedures at Sec. 656.21(a).
The new system does not contain a section on special handling
procedures, since we will handle all applications submitted to the
Department in the same way. Sheepherder applications will continue to
be submitted to INS along with the required processing fee. Employers
would have to submit to the appropriate INS officer in addition to the
processing fee:
A completed Application for Alien Employment Certification
form;
A completed PWDR endorsed by the SWA; and
A signed letter or letters from all U.S. employers who
have employed the alien as a sheepherder during the immediately
preceding 36 months, attesting that the alien has been employed in the
United States lawfully and continuously as a sheepherder, for at least
33 of the immediately preceding 36 months.
Employers that cannot not meet the requirements to file their
applications for sheepherders with INS will be able to file their
applications under the revised basic process described below.
H. Basic Process
1. Filing Applications
Employers would be required to file a completed Application for
Alien Employment Certification form and a PWDR endorsed by the SWA with
a designated ETA application processing center. Supporting
documentation that may be requested by the Certifying Officer in an
audit letter would not be filed with the application, but the employer
would be expected to be able to provide required supporting
documentation if its application were selected for audit.
The new system would limit the role of the SWA in the permanent
labor certification process to providing PWD's. Prevailing wage
determinations are currently made by SWA's after the application has
been filed as part of the normal process of reviewing an application
and informing the employer of deficiencies therein. In the new process,
the employer would still be required to obtain a PWD from the SWA,
although the timing would change from a post-filing action to a pre-
filing action.
Under the proposed regulations, before filing a permanent
application with an ETA application processing center, the employer
would submit a PWDR to the SWA. (The ``machine readable'' PWDR would
also be used to submit prevailing wage requests for the H-1B and H-2B
programs.) The SWA would issue a PWD on the PWDR form and return it to
the employer. The fully executed PWDR form would become part of the new
application form filed at an ETA application processing center.
2. Processing
Computers would do an initial analysis of the information provided
on the ``machine readable'' application form. Applications that could
not be accepted for processing because certain information that was
requested by the application form was not provided will be returned to
the employer. Applications accepted for processing would be screened
and would be certified, denied or selected for audit.
Information on the form may trigger a denial of the application or
a request for an audit by Federal regional office staff. The
application may also be selected for audit on a random basis as a
quality control measure. If an application is not denied or selected
for audit we anticipate that the application will be certified and
returned to the employer within 21 days.
If the application is selected for audit, we will send the employer
a letter with instructions to furnish required documentation supporting
the information provided on the application form within 21 calendar
days of the date of the request. If the requested information is not
received in a timely fashion, the application will be denied.
3. Filing Date
Applications accepted for processing will be date stamped.
Applications which are not accepted for processing and returned to
employer will not be date stamped to minimize the administrative
burden, and to discourage employers from filing an application merely
to obtain a filing date, which under the regulations of the INS and
Department of State becomes the priority date for processing petitions
and visa applications, respectively.
Employers will be able to withdraw applications for alien
employment certification filed under the current regulations and file
an application for the identical job opportunity involved in the
withdrawn application under the proposed rule without loss of the
filing date.
[[Page 30471]]
4. Required Prefiling Recruitment
a. Professional occupations.
Exclusively for the purpose of the permanent labor certification
program, the proposed rule defines a professional occupation as an
occupation for which the attainment of a bachelor's or higher degree is
a usual requirement for the occupation. Employers would be required to
adequately test the labor market at prevailing wages and working
conditions during the 6-month period preceding the filing of the
application. The recruitment steps consist of prescribed mandatory and
alternative steps and are designed to reflect what we believe, based on
our program experience, are the recruitment methods that are most
appropriate to the occupation. The mandatory steps for professional
occupations consist of:
Placement of a job order with the SWA serving the area of
intended employment;
Placement of two advertisements in the Sunday edition of
the newspaper of general circulation most appropriate to the occupation
and the workers likely to apply for the job opportunity in the area of
intended employment; and
Placement of an advertisement in an appropriate journal in
lieu of one Sunday advertisement if the position involves experience
and an advanced degree.
Under the current system, the employer may advertise, when a
newspaper of general circulation is designated as the appropriate
advertising medium, in any newspaper of general circulation. However,
our experience has shown that some employers routinely place newspaper
advertisements in those newspapers with the lowest circulation and that
these publications are often the least likely to be read by qualified
U.S. workers. Therefore, in order for the employer's job opening to
receive appropriate exposure, the proposed regulation requires that the
mandatory advertisements appear in the newspaper of general circulation
most appropriate to the occupation and the workers most likely to apply
for the job opportunity in the area of intended employment. For
example, in a relatively large metropolitan area such as Philadelphia,
Pennsylvania or Washington, DC, it would not be appropriate to place an
advertisement for a computer professional in a suburban newspaper of
general circulation since workers interested in professional jobs
consult the metropolitan newspapers in the area of intended employment
with the largest circulation rather than the suburban newspapers of
general circulation. On the other hand, it would be appropriate to
advertise in a suburban newspaper of general circulation for
nonprofessional occupations, such as jewelers, houseworkers or drivers.
If the position involves experience and an advanced degree, the
proposed regulation requires that the employer place one advertisement
in an appropriate professional journal in lieu of one Sunday
advertisement. To assure that employers make a current and complete
test of the labor market, the mandatory recruitment steps must be
conducted at least 30 days, but no more than 180 days, before the
application is filed. In addition, the mandatory advertisements must be
placed at least 28 days apart.
The employer, as indicated above, would also be required to select
three additional pre-filing recruitment steps from among commonly used
professional recruitment channels, such as job fairs, job search web
sites and private employment agencies. Unlike the mandatory steps, one
of the additional recruitment steps may consist solely of activity that
takes place within 30 days of the filing of the application.
We are publishing in Appendix A to the preamble a list of
occupations for which a bachelor's or higher degree is a usual
requirement. The basic list was developed by the Bureau of Labor
Statistics (BLS) and was based on its analyses of occupations' usual
education and training requirements conducted to produce the
Occupational Outlook Handbook. The Employment and Training
Administration developed a crosswalk to the O*NET, Standard
Occupational Classification (SOC) codes. The occupational titles, along
with the relevant O*Net-SOC codes and codes which indicate whether the
usual degree requirement for the occupation is for a professional
degree, doctoral degree, master's degree, work experience plus a
bachelor's or higher degree, or a bachelor's degree, are presented in
the list we are publishing in Appendix A. We do not plan to codify
Appendix A. Additional information about the occupations, including
their definitions, can be obtained from O*Net online at http://
online.onetcenter.org. Commenters are invited to submit comments on the
appropriateness of the occupations included on the list published in
Appendix A.
b. Nonprofessional Occupations
The proposed rule defines a non-professional occupation as any
occupation for which the attainment of a bachelor's or higher degree is
not a usual requirement for the occupation. Recruitment for occupations
that normally do not require a baccalaureate or higher degree, i.e.,
non-professional occupations, consists of three mandatory steps: two
newspaper advertisements and placement of a job order with the SWA
serving the area of intended employment. All three recruitment steps
must occur at least 30 days but no more than 180 days, before filing
the application. Like recruitment for professional occupations, the
advertisements must be placed at least 28 days apart, and must run in
the Sunday edition of the newspaper of general circulation most
appropriate to the occupation and the workers likely to apply for the
job opportunity.
The advertising requirements for both professional and
nonprofessional occupations are more extensive than under the current
regulations. The difference in advertising requirements between
professional and nonprofessional occupations is based on the
Department's experience as to how employers advertise for these two
broad categories of workers. The Department is interested in receiving
comments on the more extensive advertising requirements, and the
different advertising requirements for professional and nonprofessional
occupations.
5. Newspaper Advertising Requirements
The proposed requirements for the newspaper advertisements are
modeled after current regulatory requirements at 20 CFR 656.21(g),
except the advertisement must: (1) identify the employer; (2) direct
potential job seekers to the employer and not the SWA; and (3) provide
a description of the job and its geographical location that is
sufficiently detailed to fully inform U.S. workers of the particular
job opportunity. Additionally, the wage must equal or exceed the
prevailing wage entered on the PWDR by the SWA. Any job requirements
listed in the advertisement may not exceed those listed on the PWDR.
6. Recruitment Report
The employer will be required to maintain documentation of the
recruitment efforts it has undertaken and the results thereof,
including the lawful job-related reasons for rejecting U.S. workers who
applied for the job. Recruitment reports may be required in the cases
selected for audit and are required in every case in which employers
conduct supervised recruitment. Under the current regulations,
employers have always had
[[Page 30472]]
to report on the lawful job-related reasons why each U.S. worker
applying for the job or referred to the employer was not hired. See 20
CFR 656.21(b)(6) in the current regulations. The proposed regulation
provides that the employer must prepare a summary report describing the
recruitment steps taken and the results, including the number of U.S.
applicants, the number of job openings in the job opportunity, the
number of applicants hired and, if applicable, the number of U.S.
workers rejected summarized by the lawful job reasons for such
rejections. The Certifying Officer, however, after reviewing the
employer's recruitment report may request the resumes or applications
of the U.S. workers who were rejected sorted by the reasons for
rejection provided by the employer in its recruitment report.
The proposed rule governing the content of recruitment reports,
required for recruitment conducted prior to filing the application by
the employer or for supervised recruitment that may be required by the
Certifying Officer, would also clarify our position regarding
``qualified'' U.S. workers. We have added the requirements currently
found at Sec. 656.24(b)(2)(ii) to the requirements for the recruitment
reports required to be submitted by employers on the results of their
prefiling and supervised recruitment of U.S. workers. The recruitment
requirements thus provide that a U.S. worker may be qualified for the
employer's job opportunity even if he/she does not meet every one of
the employer's job requirements. The U.S. worker who, by education,
training, experience, or a combination thereof, qualifies by being able
to perform, in the normally accepted manner, the duties involved in the
occupation may not be rejected for failing to meet a specific job
requirement. In addition, the U.S. worker is considered qualified, if
he/she can acquire during a reasonable period of on-the-job-training,
the skills necessary to perform as customarily performed by other U.S.
workers similarly employed, the duties involved in the occupation.
7. Job Requirements
a. Business Necessity Standard and Job Duties
The requirement that the employer's job requirements must be those
normally required for jobs in the United States would be retained in
the new system. Employers, however, would not be able to justify job
requirements that exceed those that are normal by use of business
necessity. The business necessity standard, currently at 20 CFR
656.21(b), often works to the disadvantage of U.S. workers. This
regulation has been difficult to administer and has generated a greater
amount of litigation than any other regulatory provision in the current
regulations. Since the position for which certification is sought is
usually held by an alien worker who is the beneficiary of the
application, job requirements tend to be manipulated to favor the
selection of the alien. The existing business necessity standard
requires the CO to evaluate the unique standards of an employer's
business. In highly technical areas this is an extremely difficult
undertaking and may be subject to employer manipulation since we are in
no position to second guess the employer in such circumstances.
We have concluded that any business necessity standard that may be
adopted would present similar problems. Therefore, the proposed rule
would not retain a business necessity standard as a justification for
employer's job requirements that exceed requirements that are normal to
jobs in the United States. However, as discussed below, the case law
relating to how the business necessity standard relates to a language
requirement is being adopted. Further, any requirements other than
those relating to the number of months or years of experience in the
occupation or the number of months or years of education or training in
the occupation cannot be specified as a job requirement, unless
justified in the limited circumstances discussed below.
Accordingly, the proposed rule provides that the job opportunity's
requirements cannot exceed the Specific Vocational Preparation level
assigned to the occupation as shown in the O*Net Job Zones, except in
certain limited circumstances, as explained below.
b. Other Job Requirements
Job requirements other than those relating to the number of months
or years of experience in the occupation or the number of months or
years of training cannot be used unless justified in certain limited
circumstances, discussed below.
(1) Previous Employment of U.S. Workers
Other requirements can be justified if the employer employed a U.S.
worker to perform the job opportunity with the duties and requirements
specified in the application within 2 years of filing the application.
ETA's operating experience indicates that the more recently a job
existed and was filled by a U.S. worker before the time an application
is filed, the more likely it is to involve a job that is clearly open
to U.S. workers. In the event of an audit, the proposed rule provides
that previous employment of a U.S. worker in an occupation with
requirements other than those relating to experience, education and/or
training can be documented by furnishing the name of the former
employee, and an appropriate combination of the following: job
description, resume, payroll records, letter from previous employee and
previous recruitment documentation.
(2) Other Requirements Are Normal to the Occupation
Requirements other than those relating to amount of experience and
education could be justified if the requirements were normal to the
occupation in order for a person to perform the basic job duties and
were routinely required by other employers in the industry. The
proposed rule provides that employers can document such requirements by
providing copies of state and/or local laws, regulations, ordinances;
articles; help-wanted advertisements; or employer surveys. Acceptable
examples, depending on the occupation, include but are not limited to,
professional trade or business licenses, licensing standards, specified
typing speed, and the ability to lift a minimum number of pounds.
(3) Foreign Language Requirement
Preventing employers from artificially tailoring job opportunities
to fit the unique skills of the incumbent alien has always been a major
issue is the labor certification process. Since 1977, we have addressed
this through the use of the ``business necessity'' test. For reasons
already discussed, we are not utilizing business necessity in the new
system. However, with respect to language requirements, which are often
used by employers seeking to artificially restrict the job to the
incumbent alien, the use of the business necessity standard produced a
well-understood and, generally, well-accepted body of law about when
and how language requirements can be utilized. The proposed rule
incorporates that legal standard.
Consistent with the majority of BALCA decisions, the proposed rule
would require that a foreign language requirement cannot be included
merely for the convenience of the employer or because it is a mere
preference of the employer, co-workers or customers. Although the
proposed rule would eliminate any business necessity standard as a
means of justifying a
[[Page 30473]]
foreign language requirement, the rule would incorporate the existing
standards and criteria developed under BALCA case law. Therefore, a
foreign language can be based on the nature of the occupation; e.g.,
translator, or, for example, the existence of the need to communicate
with a large majority of the employer's customers or regular
contractors who cannot communicate effectively in English. This can be
documented by the employer furnishing the number and proportion of its
clients contractors who cannot communicate in English, a detailed
explanation of why the duties of the position for which certification
is sought require frequent contact with and communication with
customers or contractors who cannot communicate in English, and why it
is reasonable to believe that the foreign language customers and
contractors cannot communicate in English.
(4) Combination Occupations
The revised regulation makes two changes to the provision about
combination of duties in the current regulation. First, the proposed
regulation uses the term ``combination of occupations'' instead of
``combination of duties'' as most jobs require the incumbent to perform
a combination of duties. Second, the ability to document the need for a
combination of occupations would be limited to two instead of three
alternative forms of documentation that can be furnished by the
employer to support a combination of occupations under the current
regulations. For the reasons explained above in the discussion on the
elimination of a business necessity standard, business necessity would
no longer be a basis for justifying a job opportunity involving a
combination of occupations. Further, the alternative provided in the
current regulations for justifying a combination of duties which allows
the employer to document that it has normally employed persons for that
combination of duties would be replaced with the standard, discussed
above, for justifying requirements other than experience and education
that are based on the previous employment of a U.S. worker.
Accordingly, the revised regulation limits the alternative forms of
documentation the employer can furnish to support a combination of
occupations to documentation that it employed a U.S. worker for the
same combination of occupations involved in the application within 2
years of filing the application and/or that workers customarily perform
the combination of occupations in the area of intended employment.
Consistent with our longstanding policy, combination jobs would be
classified and prevailing wages determined in the following order: (1)
The highest paying occupation; (2) the highest skilled occupation; or
(3) the occupation that requires the largest percentage of the
applicant's time. The highest paying occupation is considered first in
classifying the job opportunity because the prevailing wage for the
highest paying occupation has to be offered by the employer in order to
conduct a valid test of the labor market for the highest paying
occupation involved in the employer's job opportunity. If two or more
occupations have the same high prevailing wage, the job opportunity
would be classified according to the one that is the most highly
skilled. If two or more occupations require the same high level of
skill, the combination occupation would be classified in accordance
with the one that would require the largest percentage of the
incumbent's time.
8. Actual Minimum Requirements
The proposed rule precludes employers including as a requirement
for the job opportunity any experience the alien gained working for the
employer in any capacity, including working as a contract employee.
Since 1977, we have prohibited using experience gained with the
employer to be used as qualifying experience except in cases where the
alien gained the experience in dissimilar jobs or in instances where it
is no longer feasible for the employer to train a U.S. worker. After
over 2 decades of administering this regulation, we have concluded
there is no material difference in the need to protect U.S. workers if
the alien gained the experience in a similar job or a dissimilar job,
or if the employer maintains that it is no longer feasible to train
another worker for the job involved in the application.
The need to protect U.S. workers stems in large measure from the
same reason we are proposing to eliminate business necessity as a
justification for exceeding job requirements that are normal to the job
in the United States. In situations where the alien encumbers the job
opportunity involved in the employer's application, job requirements
tend to be manipulated in favor of the alien incumbent to the
disadvantage of U.S. workers.
The question of what employing entity is the employer has also
presented considerable confusion. To clarify this issue and to maximize
protection to U.S. workers we have concluded, consistent with the BALCA
decision In the Matter of Haden, Inc. (88-INA-245, August 30, 1988),
that the definition of employer should be broadly drawn. Accordingly,
we propose to define the term ``employer'' to include predecessor
organizations, successors in interest, a parent, branch, subsidiary, or
affiliate, whether located in the United States or another country.
Although ETA has followed Haden in administering the current
regulations, the Department seeks comments on the proposed definition
of employer for administering the provision pertaining to actual
minimum requirement at Sec. 656.17(h).
9. Alternative Experience Requirements
We are proposing to eliminate the use of alternative experience
requirements as a means of qualifying for the employer's job
opportunity for much the same reasons we are proposing to eliminate
business necessity and to preclude the employer from including as a
requirement for the job opportunity any experience the alien gained
working for the employer in any capacity.
As a practical matter, in virtually all instances involving
alternative experience requirements the alien beneficiary has been
employed, usually by the employer applicant, in a job requiring less
than 2 years of training or experience. The Act only allocates 10,000
visas a year to workers immigrating to work in the employment-based
preference provided in the Act for such jobs (see 8 U.S.C.
1153(b)(3)(A)(iii)). The visa category for these unskilled jobs is
oversubscribed and there is approximately a 4\1/2\ year wait for aliens
who are waiting to immigrate to work in jobs requiring less than 2
years of training and experience. The other employment-based
preferences requiring labor certification are generally not
oversubscribed. The primary objective of the employer in specifying
alternative experience requirements is to obtain certification for a
job opportunity for which visa numbers are currently available. In
these cases, as in the situations where business necessity
justifications have been proffered, or in instances where the employer
maintains the alien gained the experience in a dissimilar jobs or
maintains that it is no longer feasible to train another worker for the
job involved in the application, there is a need to protect U.S.
workers as the job requirements tend to be manipulated to favor the
alien beneficiary.
10. Conditions of Employment
The current regulations do not explicitly address conditions of
employment, but we consider conditions of employment, such as a
[[Page 30474]]
requirement to live in the employer's household or a requirement to
work a split shift, an important element of working conditions.
Generally, unusual working conditions can be justified if the employer
can document that they are normal to the occupation in the area and
industry. The one exception to this rule is for live-in household
domestic service workers. Because of the past history of program abuse
involving the filing of large numbers of accommodation cases motivated
primarily by the desire to obtain permanent resident alien status for
the alien beneficiary and not by legitimate employment needs, the
proposed rule would incorporate the standards and criteria that have
been developed by BALCA case law to determine when a live-in
requirement for a household domestic service workers is acceptable.
Therefore, live-in requirements are acceptable for household
domestic service workers only if the employer can demonstrate that the
requirement is essential to perform in a reasonable manner the job
duties as described by the employer, and there are not cost-effective
alternatives to a live-in household requirement. Mere employer
assertions do not constitute acceptable documentation. For example, a
live-in requirement could be supported by documenting two working
parents and young children in the household, and/or the existence of
erratic work schedules requiring frequent travel and a need to
entertain business associates and clients on short notice. Depending
upon the situation, acceptable documentation could consist of travel
vouchers, written estimates of costs of alternatives such as baby
sitters, and/or a detailed listing of the frequency and length of
absences of the employer from the home.
The proposed rule would also retain the filing and documentation
requirements at 20 CFR 656.21(a) for live-in household domestic service
workers that have been in the permanent labor certification regulations
since 1977 to minimize program abuse and abuse of the alien, such as
the requirement that a signed copy of the contract must be provided to
the alien and documentation of the alien having 1 year's prior
experience in the occupation and are described below in greater detail.
11. Layoffs
The current regulations do not specifically require employers to
consider potentially qualified U.S. workers who may have been laid off
within a reasonably contemporaneous period of time of the filing of the
labor certification application by the employer. However, it has always
been our position that Certifying Officers have the authority to
consider the availability of these workers under Sec. 656.24(b)(2)(i)
and (iii) of the current regulations. Under Sec. 656.24(b)(2)(i), the
Certifying Officer may determine whether there are other appropriate
sources of workers from which the employer should recruit or might be
able to recruit U.S. workers. Section 656.24(2)(iii) provides that in
determining whether U.S. workers are available, the Certifying Officer
shall consider as many sources as are appropriate. The proposed rule
would provide Certifying Officers with broad authority to designate
other sources of recruitment where the employer would be required to
recruit for U.S. workers.
Accordingly, the proposed rule would require employers, if there
has been a layoff in the area of intended employment within 6 months of
the filing of the application, to attest to and document notification
and consideration of potentially qualified U.S. workers involved in the
layoff and the results of such notification.
12. Alien Influence Over Job Opportunity
When an employer seeks labor certification for an alien who is in a
position to unduly influence hiring decisions or who has such a
dominant role in, or close personal relationship with the employer and/
or employer's business that it is unlikely that the employer would
replace the alien with a qualified U.S. applicant, BALCA decisions
allow the Certifying Officer to determine that the job opportunity has
not been clearly open to any qualified U.S. worker.
The leading BALCA decision, Modular Container Systems, Inc. (89-
INA-228, July 16, 1991), articulates several factors that should be
considered by Certifying Officers to determine whether or not the job
opportunity is bona fide or clearly open to U.S. workers. The proposed
rule incorporates this requirement. The proposed rule specifies what
documentation the employer must be prepared to furnish to enable the
Certifying Officer to evaluate the employer's application in light of
the factors articulated by BALCA in Modular Container Systems. These
factors include whether the alien:
Is in the position to control or influence hiring
decisions about the job for which labor certification is sought;
Is related to the corporate directors, officers or
employees;
Was an incorporator or founder of the company;
Has an ownership interest in the company;
Is involved in the management of the company;
Is one of a small number of employees;
Has qualifications for the job that are identical to
specialized or unusual job duties and requirements stated in the
application; and
Is so inseparable from the sponsoring employer because of
his or her pervasive presence and personal attributes that the employer
would be unlikely to continue in operations without the alien.
I. Optional Special Recruitment and Documentation Requirements for
College and University Teachers
Procedures for filing applications for college and university
teachers in the current regulations are in the special handling
procedures at 20 CFR 656.21(a). As indicated above, the new system does
not provide for any special handling procedures. All applications we
receive will be processed in the same way, although there may be some
differences depending upon the occupation, in the attestation and
documentation requirements. Consequently, procedures for filing
applications on behalf of college and university teachers would be in a
separate section. The documentation requirements for filing
applications for college and university teachers would remain much the
same as under the current regulation. The revised regulations, however,
would specifically recognize current operating practice that employers
that cannot or choose not to satisfy the special recruitment procedures
for college and university teachers may avail themselves of the basic
process in the new system.
Whether employers file applications on behalf of college and
university teachers under the special recruitment procedures or the
basic process, they are required to be able to document, if requested
by the Certifying Officer, that the alien was found to be more
qualified than any U.S. worker who applied for the job opportunity. The
Act requires, in the case of members of the teaching profession, that
U.S. workers have to be equally qualified with respect to the alien
beneficiary to be considered by the employer for the job opportunity
for which certification is sought. See 8 U.S.C. 1182(a)(5)(A).
[[Page 30475]]
J. Live-in Household Domestic Service Workers
Applications for household domestic service occupations would be
filed, as in the current rule, under the revised basic process. Most of
the documentation requirements for live-in household domestic service
workers are unchanged from the current requirements contained in the
current regulation at Sec. 656.21(a)(3)(i) and (ii). However, some of
the information that was previously required to be provided in item 20
of Form ETA 750, Part A, Statement for Live-at-Work Job Offers will no
longer be collected on the application, but employers will be required
to furnish that information if their applications are audited. This
information includes a description of the residence, the number of
individuals living in the household and their ages in the case of
persons under the age of 18, and a statement as to whether or not free
board and a private room not shared by another person will be provided
to the alien. The employer would be required to attest on the
application form that it will maintain all required documentation and,
in the event of an audit, the employer will be required to submit this
documentation to ETA, as well as the other documentation that is
required for all occupations under the basic labor certification
process.
K. Audit Letters
Under the current regulations, if a Certifying Officer determines
that a certification cannot be issued, a Notice of Findings (NOF) must
first be issued to the employer notifying it of the specific reasons
for which the Certifying Officer intends to deny the application.
Issuing a NOF and analyzing employers responses is probably the most
time consuming aspect of the current labor certification system. The
proposed rule does away with NOF's.
As indicated above, after an application has been determined to be
acceptable for filing, a computer system would review it based upon
various selection criteria that would allow applications to be
identified for an audit. Additionally, as a quality control measure,
the regulations provide that some applications could be randomly
selected for audit without regard to the results of the computer
analysis. Audit letters would be, for the most part, standardized,
computer generated documents, stating the documentation that must be
submitted by the employer. The proposed regulation would provide, in
virtually all instances where an employer could be required to submit
documentation in support of its attestations, the type of documentation
the employer would be required to maintain and furnish in the event of
an audit. Employers would be expected to have assembled and have a hand
in all documentation necessary to support their applications before
they are submitted.
If the employer did not mail the requested documentation within 21
days of the date of the audit letter, the application would be denied
and the administrative-judicial review procedures provided for in the
proposed rule would not be available. We have concluded that 21 days is
sufficient time for employers to respond to audit letters because, as
indicated above, the regulations indicate what documentation employers
will be required to assemble, maintain and submit to respond to an
audit letter. Extensions would not be granted to respond to audit
letters. Failure to provide required documentation in a timely manner
would be deemed a material misrepresentation to dissuade those small
number of employers that conceivably may file applications without
complying with all the documentation requirements from filing such
applications. Further, failure to timely provide documentation would
constitute a refusal to exhaust available administrative remedies and
the administrative-review procedures would not be available.
If the requested documentation is submitted on time, the Certifying
Officer would review the documentation submitted by the employer under
the proposed standards in Sec. 656.24 of this part.
As discussed below in the section on labor certification
determinations, if the Certifying Officer determines that the employer
materially misrepresented documentation requirements due to a failure
to provide required documentation pursuant to Sec. 656.21(a)(3)(ii) of
this part, or otherwise determines a material misrepresentation was
made with respect to the application for any reason, the employer may
be required to conduct supervised recruitment pursuant to section
656.21 of this part in future filings of labor certification
applications for a period of 2 years. Commenters are invited to suggest
items that can be added to the application form that would be helpful
in identifying applications that may involve fraud and abuse.
Before making a final determination in accordance with the
standards in Sec. 656.24 of this part, the Certifying Officer could
request supplemental documentation or require the employer to conduct
supervised recruitment. A request for supplemental documentation could
include a request for certain limited information not specified in the
regulations, but that should be readily available to the employer. For
example, if an application under review involves a job opportunity for
a specialty chef, the Certifying Officer could request a copy of the
restaurant's menu to aid in determining whether there was a bona fide
job opening available for a specialty chef.
Once the Certifying Officer has reviewed all requested information,
the Certifying Officer will issue a final determination granting or
denying the application.
L. Supervised Recruitment
1. General
In any case where the Certifying Officer determines it to be
appropriate, post-filing supervised recruitment may be ordered. This
would include cases selected for audit and cases where serious
questions arise about the adequacy of the employer's test of the labor
market. It is anticipated, however, that the decision to order
supervised recruitment will usually be based on labor market
information. Supervised recruitment would operate much like the non-RIR
recruitment under the current basic process at Sec. 656.21, except that
the recruitment efforts would be directed by the Certifying Officer and
not by the SWA, as is the case under the current system.
2. Recruitment Sources
The advertisement requirements would be more detailed and rigorous
than for pre-application recruitment. The advertisement would be
required to be approved by the Certifying Officer before publication
and the Certifying Officer would direct where it would be placed. We
anticipate that Certifying Officers would, based on their broad
knowledge of the labor market and experience in evaluating recruitment
results placed in various newspapers, direct employers where to place
advertisements. The advertisement would direct applicants to send
resumes or applications to the Certifying Officer and would be required
to include a summary of the employer's minimum job requirements. The
Certifying Officer, as in the current rule, would have broad authority
to designate other sources of workers where the employer should recruit
for U.S. workers. The broad authority of the Certifying Officer to
determine if there are other appropriate sources of workers where the
employer should have recruited or might be able
[[Page 30476]]
to recruit U.S. workers would be moved from the determination process
at 20 CFR 656.24 in the current regulations, to the section on
supervised recruitment in the proposed rule at 20 CFR 656.21.
3. Recruitment Report
At the completion of the supervised recruitment efforts, the
employer will be required to document that its efforts were
unsuccessful, including documenting the lawful job-related reasons for
not hiring any U.S. workers who applied for the position. As explained
above, employers have always been required to report on the lawful job-
related reasons why each U.S. worker applying for the job or referred
to the employer was not hired under the current regulation at 20 CFR
656.21(b)(6). This would be a specific requirement that employers would
have to address in the employer report on supervised recruitment. The
current regulation at 20 CFR 656.21(j) specifying the content of
recruitment reports is potentially confusing in that it does not agree
with the current requirement at 20 CFR 656.21(b)(6). In the present
regulations employers only have to provide the lawful job related
reasons for not hiring each U.S. workers interviewed. The other
requirements for the employer's recruitment are much the same as in the
current regulations. The employer would be required to report the
number of U.S. workers who applied for the position, the number of
workers interviewed, the names and addresses of the U.S. workers
interviewed for the job opportunity, and the job title of the person
who interviewed the workers.
We are taking the same position on who is a qualified U.S. worker
in the supervised recruitment process as we took in our discussion of
the issue for the prefiling recruitment process. A U.S. worker may be
qualified even if he/she does not meet every one of the employer's job
requirements. U.S. workers would be considered qualified if the U.S.
workers, by education, training, or a combination thereof, qualify by
being able to perform, in the normally accepted manner, the duties
involved in the occupation. U.S. workers would be considered qualified
if they could acquire, during a period of reasonable on-the-job
training, the skills necessary to perform as customarily performed by
other workers similarly employed, the duties involved in the
occupation. Rejection of such workers based solely on lack of
familiarity with some particular subsidiary job duty will not be
permitted.
M. Labor Certification Determinations
1. Referral of Applications to the National Office for a Determination
and Specification of Applications to be Handled in the National Office
The provisions that applications involving special or unique
problems may be referred to the National Certifying Officer by the
Regional Certifying Officer and that certain types of applications or
specific applications be handled in the National Office have been
deleted because they are no longer necessary. Under the existing
regulations there are specific provisions governing the processing of
an individual application through the SWA's and the ETA regional
offices. The current regulations specify, depending upon the geographic
location of the employer, which applications would be processed and
reviewed by the various Certifying Officers. Accordingly, there was a
need for provisions in the regulations to provide the authority for
regional Certifying Officers to refer applications to the National
Office or for the National Office to have the authority to direct that
certain types of applications or specific applications be handled in
the national office. Under the new system the SWA's will no longer be
involved in case processing and the proposed regulations do not specify
which applications will be reviewed by the various Certifying Officers,
including the National Certifying Officer. Therefore, specific
provisions are not required in the regulations to govern referrals by
regional Certifying Officers of applications involving unique or
special problems to the National Certifying Officer, or for the
National Office to direct that certain types of applications or
specific applications be handled in the ETA National Office.
2. Designation of Recruitment Sources
The determination process has been revised to reflect that all fact
finding will have been completed by the time the Certifying Officer
makes a determination. Consequently, the broad authority of the
Certifying Officer to designate other appropriate recruitment sources
from which the employer should recruit for U.S. workers is deleted from
the determination process and included in the section detailing the
operation of supervised recruitment in the new system at Sec. 656.21.
3. Qualified U.S. Workers
As indicated above, consistent with the provisions in the
regulations governing the content of recruitment reports that must be
completed by employers whether they conduct prefiling or supervised
recruitment, the section on determinations would be revised to provide
that, alternatively, the U.S. worker is qualified if he/she can acquire
during a reasonable period of on-the-job training, the skills necessary
to perform the duties involved in the occupation, as customarily
performed by other U.S. workers similarly employed.
4. Material Misrepresentations
As indicated above, if a Certifying Officer determines that the
employer materially misrepresented it had complied with all
documentation requirements due to a failure to provide required
documentation pursuant to Sec. 656.21(a)(3)(ii) of this part, or
otherwise determines a material misrepresentation was made with respect
to the application for any reason, the employer may be required to
conduct supervised recruitment pursuant to section 656.21 of this part
in future filings of labor certification applications for a period of 2
years.
5. Reconsideration
The present regulations are silent with respect to the availability
of motions for reconsideration after a Final Determination.
Historically, Certifying Officers sometimes honored such motions but
generally treated them as requests for review and transmitted the
matter to the ALJ.
In order to address this matter, the regulation is amended to
specifically provide that while motions for reconsideration before the
Certifying Officer may be filed, the Certifying Officer may, in his/her
complete discretion, choose to treat the motion as a request for
review.
N. Board of Alien Labor Certification Appeals Review, Consideration and
Decisions
1. Only Employer Can Request Review
The current regulations provide that if a labor certification is
denied, a request for review of the denial may be made to the Board of
Alien Labor Certification Appeals, by the employer and by the alien,
but in the case of the alien, only if the employer also requests such a
review. Only an employer can file An Application for Alien Employment
Certification. Moreover, the employer can withdraw its application at
any time. In view of the primacy of the employer in the labor
certification process, we have concluded that it makes little sense to
allow an alien to also file an appeal and are proposing to only
authorize employer appeals.
[[Page 30477]]
2. Time Allowed to File Requests for Review
Consistent with the objective of streamlining and reducing
processing time, the proposed rule would reduce the time to file a
request for review to 21 calendar days from the 35 days specified in
the current regulations. The Department believes that 21 days is
sufficient time for an employer to file a request for review.
3. Aliens of Exceptional Ability in the Performing Arts
All references to aliens of exceptional ability in the performing
arts would be deleted from the sections in the proposed rule detailing
the procedures for filing requests for review and from the procedures
to be followed by the Board in considering appeals and issuing
decisions, since aliens of exceptional ability in the performing arts
would be moved to Schedule A. The proposed rule would provide, as does
the current rule, that the Schedule A determination of INS shall be
conclusive and final.
4. Amicus Briefs
The provisions for amicus briefs for cases involving college and
university teachers and aliens of exceptional ability in the performing
arts would also be deleted from the sections of the proposed rule
detailing the procedures to be followed in filing requests for review
and the procedures to be followed by the Board in considering appeals
and issuing decisions. Provisions for amicus briefs would no longer be
applicable to aliens of exceptional ability in the performing arts,
since they would be on Schedule A and Schedule A determinations of the
INS are conclusive and final. Specific provisions for amicus briefs are
no longer necessary in the case of college and university teachers
because BALCA, in practice, accepts such briefs from any party that
wishes to file one. The current language implies that BALCA would
accept amicus curiae briefs only in cases involving college and
university teachers and aliens of exceptional ability in the performing
arts.
5. Copies of Appeal File
In the interest of providing improved customer service, the revised
regulation would provide that the Certifying Officer shall send a copy
of the Appeal File to the employer in lieu of only a copy of the index
to the Appeal File to the employer. This would obviate the need for the
employer to examine the Appeal File at the office of the Certifying
Officer. The named alien beneficiary of the labor certification would
not receive a copy of the appeal file for much the same reasons he or
she would not be allowed to file a request for review as discussed
above.
6. Elimination of Remands
The current regulations provide that the Board may remand cases to
a Certifying Officer for further consideration or fact-finding and
determination. We anticipate that cases processed under the new system
would be sufficiently developed by the time they get to the Board that
there should be no need to remand a case to a Certifying Officer. The
proposed regulation authorizes the BALCA to either affirm or reverse
the Certifying Officer's decision, but makes no provision for remands.
O. Validity and Invalidation of Labor Certifications
Substitution of Alien Beneficiaries
We published an interim final rule on October 23, 1991, effective
November 22, 1991, which limited the validity of labor certifications
to the specific alien named on the labor certification application.
(See 56 FR 54925, 54930.) This interim final rule had the effect of
eliminating the practice of allowing the substitution of alien
beneficiaries on approved labor certifications. On December 1, 1994,
the U.S. District Court for the District of Columbia, acting under the
mandate of the U.S. Court of Appeals for the District of Columbia in
Kooritzky v. Reich, 17 F.3d 1509 (D.C. Cir. 1994), issued an order
invalidating that portion of the interim final rule which eliminated
substitution of labor certification beneficiaries. The order had the
effect of reinstating the Department's previous practice of allowing
substitution of alien beneficiaries on approved labor certifications.
Although the regulation was never conformed to the District Court
order, we reinstated the practice of allowing the substitution of alien
beneficiaries on approved labor certifications. Subsequently,
operational responsibility for substituting alien beneficiaries on
approved labor certifications was delegated to INS. INS issued a
memorandum on March 7, 1996, Subject: Substitution of Labor
Certification Beneficiaries, to implement the delegation of the
responsibility for substituting labor certification beneficiaries to
the Service. On March 22, 1996, ETA issued a Field Memorandum (FM) to
its Regional Administrators informing them that all requests for
substitution received after the date of the FM were to be returned to
the employer with instructions to file the request with INS along with
a copy of the I-140 preference petition. The proposed rule would return
the regulatory provisions detailing the scope of the certification at
20 CFR 656.30(c)(1) and (2) to read the same as they did before
November 22, 1991. As before the Interim Final Rule, the regulation
does not mention substitution.
P. Revocation of Approved Labor Certifications
We propose to provide Certifying Officers with limited authority to
revoke labor certifications within 1 year of the date the labor
certification is granted or before a visa number becomes available to
the alien beneficiary, whichever occurs first. The proposed rule lists
the steps that may be taken by the Certifying Officer, who issued the
certification, or an authorized person acting on his or her behalf, in
consultation with the National Certifying Officer, to revoke the
certification if the Certifying Officer finds that the certification
was improvidently granted.
The proposal also provides that an employer may file an appeal with
BALCA if it first files timely rebuttal evidence in response to the
Certifying Officer's Notice of Intent to Revoke and the Certifying
Officer determines that the certification should be revoked.
Q. Prevailing Wages
1. PWDR
We propose to standardize the PWD process through the use of the
PWDR form. Before submitting a labor certification application under
the new system, the employer will be required to submit the new PWDR
form to the SWA in the State where the work will be performed. The PWDR
form would require information from the employer that would allow the
SWA to make the required determination of the prevailing wage for the
job opportunity for which certification is sought. Specifically, the
proposed form would require the employer to indicate the location of the job opportunity in terms of city or county and state, the title of
the job and a description of the duties to be performed, the education,
training, and/or experience required for the job, including any special
requirements.
Upon receipt of a PWDR form, the SWA would review it and would
determine the occupational classification and the area of intended
employment. The SWA would then enter its determination on the PWDR form
and return it with its endorsement
[[Page 30478]]
to the employer. The PWDR form may then be submitted in support of a
permanent labor certification application. The SWA determination would
include a State agency tracking number unique to that particular
determination that would be used by ETA for program management
purposes. The determination would also include the occupational code
assigned to the job, the specific prevailing wage level determined by
the SWA and the source of that information, the level of skill of the
job in the case of those determinations made using the wage component
of the Occupational Employment Statistics (OES) survey, and the date
upon which the determination was made. If there is no collective
bargaining agreement that would set the prevailing wage for the
position, the employer will have the option of submitting an
alternative wage survey or other source data for which the employer
wishes the SWA to approve as a determinant of the prevailing wage in
response to that specific request.
2. Validity Period of PWD
We are proposing that the SWA must specify the validity period of
PWD on the PWDR form, which in no event shall be less than 90 days or
more than 1 year from the determination date entered on the PWDR.
Employers filing LCA's under the H-1B program must file their labor
condition application within the validity period. Since employers
filing applications for permanent labor certification can begin the
required recruitment steps required under the regulations 180 days
before filing their applications, they must initiate at least one of
the recruitment steps required for a professional or nonprofessional
occupation within the validity period of the PWD to rely on the
determination issued by the SWA.
3. Collective Bargaining Agreement, Davis Bacon Act and Service
Contract Act
Under the current regulations at Sec. 656.40 the first order of
inquiry for a SWA in determining the prevailing wage is to determine if
the employer's job opportunity is in an occupation which is subject to
a wage determination in the area under the Davis Bacon Act (DBA) or the
McNamara-O'Hara Service Contract Act (SCA). If there is a prevailing
wage under one of those statutes in the area of intended employment it
must be used as the prevailing wage whether or not the employer has a
Government contract in the area of intended employment. We are
proposing to amend the prevailing wage regulation so that the first
order of inquiry by the SWA in determining prevailing wages will be to
determine whether or not the employer's job opportunity is covered by a
union contract which was negotiated at arms length between a union and
the employer. If the job opportunity is covered by such a contract it
will be the prevailing wage for labor certification purposes.
The BALCA decision in El Rio Grande on behalf of Galo M. Narea
(1998-INA-133, February 4, 1998; Reconsideration July 28, 2000) has
prompted us to review the requirement for use of DBA and SCA wage
determinations in making prevailing wage determinations for the
permanent alien labor certification program. As explained more fully
below, BALCA, in El Rio Grande, held that it has jurisdiction to review
challenges to PWD's based on an SCA wage determination.
The use of DBA and SCA statutory wage determinations first appeared
in the permanent labor certification regulations in 1967 (see 32 FR
10932). The use of DBA and SCA wage determinations in the permanent
labor certification was in large measure prompted by concerns for
administrative convenience. The SCA and DBA wage determinations were
viewed as a convenient source of wage determinations that could be used
for labor certification purposes. At that time, wage surveys were not
as numerous, comprehensive and well developed as they are now.
On October 31, 1997, ETA in General Administrative Letter No. 2-98;
Subject: Prevailing Wage Policy for Nonagricultural Immigration
Programs, stated it had determined that the most efficient and cost
effective way to develop consistently accurate prevailing wage rates is
to use the wage component of the Bureau of Labor Statistics' expanded
Occupational Employment Statistics (OES) program. The OES is based on
the Standard Occupational Classification System (SOC), which will be
used by all Federal statistical agencies for reporting occupational
data. The OES provides arithmetic means by occupation and relevant
geographic area for use in making prevailing wage determinations in the
labor certification program.
There are marked differences in the way prevailing wages are
determined under the DBA and SCA programs. The first order of inquiry
in making SCA and DBA wage determinations is the wage paid to the
majority (more than 50 percent) of the workers in a particular
classification. See 29 CFR parts 1 and 4. Under SCA, if there is no
rate paid to the majority, the median is ordinarily used rather than
the mean. The regulations for the SCA program at 29 CFR 4.51(c) also
provide that in those instances in which a wage survey for a particular
locality may result in insufficient data, the prevailing wage may be
established through a ``slotting'' procedure whereby wage rates for an
occupational classification are based on a comparison of equivalent or
similar job duty and skill characteristics between the classification
studied and those for which no survey data is available. Under the OES
system, if the data obtained for an occupation are insufficient, larger
areas are used in aggregating wage data so that an appropriate
arithmetic mean can be determined. Operational difficulties are also
encountered in applying DBA and SCA statutory wage determinations
because they are based on a different occupational classification
system than the SOC. Further, SCA wage determinations frequently do not
contain levels within an occupation, while the OES survey data
furnished to ETA and the SWA's provides two levels of wages for every
occupation.
We have concluded that it makes little sense to make determinations
based on different statistical measures arrived at through inconsistent
methodologies in determining prevailing wages mandatory for the
permanent labor certification program. Accordingly, the proposed rule
deletes the provision requiring that DBA and SCA wage determinations
must be used in determining prevailing wages. Employers will, however,
have the option to use current DBA and SCA wage determinations in
addition to using the arithmetic mean provided by the wage component of
the Occupational Employment Statistics Survey and employer provided
wage information in accordance with the proposed provision at section
656.40(b)(4) of this part.
Surveys used to arrive at DBA wage determinations are not conducted
by BLS, but by the Wage and Hour Division. Rather than sample surveys,
they are universe surveys and data is sought on all projects in the
area for a particular type of construction--ordinarily building
construction, heavy construction, highway construction, and residential
construction. The prevailing wage is determined based on the rate paid
the majority, or if there is no majority, the arithmetic mean, of
workers employed in the occupation based on wage data from the peak
workweek for each project during the survey period (ordinarily 1 year),
thereby allowing duplicated counting of
[[Page 30479]]
workers. Since these procedures are significantly different than those
set forth in GAL 2-98 cited above, and do not provide an arithmetic
mean of all of the workers in the occupation in the appropriate
geographic area, we are considering the appropriateness of use of
Davis-Bacon surveys in the permanent labor certification program.
We invite comment on the appropriate use of the surveys conducted
to arrive at DBA and SCA wage determinations.
Although the proposed rule for determining prevailing wages does
not contain a provision about the use of DBA and SCA wage
determinations, we are aware that the regulations may be changed after
review of the comments. Therefore, as a result of the El Rio Grande
decision, the proposed rule for the prevailing wage panel review of
prevailing wage determinations, discussed below, contains provisions
for review of determinations involving DBA or SCA wage determinations.
We are also proposing changes similar to those discussed above to
Sec. 655.731 of the regulations under the H-1B program. The INA
requires that the wages paid to an H-1B professional worker be the
higher of the actual wage paid to workers in the occupation by the
employer or the prevailing wage for the occupational classification in
the area of employment. The H-1B regulations incorporate the language
of 20 CFR 656.40 (as suggested by H.R. Conference Report, No. 101-95,
October 26, 1990, page 122) and provide employers filing applications
the option of obtaining a PWD from the SWA, using an independent
authoritative source, or using another legitimate source as provided by
Sec. 655.731(a)(2)(iii)(B) and (C) of the H-1B regulations. See also
Sec. 655.731(b)(3). Thus we are proposing changes to the H-1B
regulations similar to the ones we are proposing to Sec. 656.40 of the
regulations governing the determination of prevailing wages for the
permanent labor certification program.
4. Elimination of 5 Percent Variance
We are proposing to eliminate a provision from the existing
regulations governing the requirements for paying the prevailing wage
for the occupation and area. Under Sec. 656.40(a)(2)(i), the wage set
forth in a labor certification application is considered as meeting the
prevailing wage standard if it is within 5 percent of the average rate
of wages. That is, the employer is considered to meet the prevailing
wage requirement as long as it offers to pay 95% of the prevailing wage
as determined by the SWA. The rationale for this provision, which has
been in the Department's permanent program regulations since 1977, was
that it was not always possible to determine an average rate of wages
with exact precision. Before January 1, 1998, when we implemented the
use of the wage component of the OES survey, SWA's usually obtained
prevailing wage information by purchasing available published surveys
or by conducting ad hoc telephone surveys of employers in the area of
intended employment likely to employ workers in the occupational
classification involved in an employer's labor certification
application. Since the statistical precision of these methods varied
greatly, we believed it was necessary to allow some variance in the
rate offered by the employer.
The wage component of the OES survey is conducted by the Bureau of
Labor Statistics (BLS) and, with the exception of the decennial Census,
is the most comprehensive survey conducted by an agency of the Federal
government. The OES program conducts a yearly mail survey designed to
produce estimates of employment and wages for specific occupations. The
OES program collects data on wage and salary workers in non-farm
establishments in order to produce employment and wage estimates for
over 750 occupations by geographic area and by industry. Estimates
based on geographic areas are available at the National, State, and
Metropolitan Area levels. The OES program surveys approximately 400,000
establishments per year, taking three years to fully collect the sample
of 1.2 million establishments. This total covers over 70 percent of the
employment in the U.S. Due to the comprehensive nature of the survey
and the resulting degree of statistical precision with regard to the
results thereof, we believe that it is no longer necessary to provide
the 5% variance authorized under the existing labor certification
regulations at Sec. 656.49(a)(2)(i), and the H-1B regulations at
Secs. 655.731(a)(2)(iii) and 655.731(d)(4).
5. Employer-Provided Wage Data
The proposed rule directs SWA's to consider the use of employer-
provided wage data in the absence of a PWD obtained through a
collective bargaining agreement negotiated between the union and the
employer.
In all cases where the employer submits a survey or other wage data
for which it seeks acceptance, the employer would be required to
provide the SWA with enough information about the survey methodology,
including such items as the sample frame size and source, sample
selection procedures, and survey job descriptions, to allow the SWA to
make a determination about the adequacy methodology used to conduct the
survey in accordance with guidance issued by the ETA National Office.
The function of the SWA in these instances is merely to determine if
the employer-provided survey is adequate and acceptable. ETA's National
Office will provide guidance to be used in evaluating the statistical
methodology used in producing the employer provided survey. The role of
the SWA is not to determine whether the employer provided survey is
more or less accurate than the prevailing wage information provided by
the OES survey. If the employer-provided data is found to be
acceptable, the specific wage rate obtained from that source will be
determined to be the prevailing wage in responding to that particular
request. We will continue our existing policy of not considering the
issuance of a PWD based upon the acceptance of employer-provided wage
data for a specific job opportunity as superseding the OES wage rate
for subsequent requests for PWD's in the same occupation and area,
since such determinations are made on a case-by-basis. For example, the
job description in the employer provided survey may not be general
enough to apply to all employers that employ workers in the occupation
for which certification is being sought in a particular instance in the
area of intended employment.
The proposed rule would also provide that if the employer-provided
data is found not to be acceptable, the SWA's response to the employer
must include the specific reasons why it is not acceptable (e.g., the
geographic area covered by the survey is broader than that which is
necessary to obtain a representative sample), and must provide the
employer with the appropriate prevailing wage rate as derived from the
OES survey data. Employers will have an opportunity to provide one
supplemental filing that must be considered by the SWA. If the SWA
finds the survey unacceptable after considering the supplemental
information it must provide the employer the reasons why the
supplemental information does not make the survey acceptable.
The employer after receiving notification that the survey it
provided for the SWA's consideration will be able to file a new request
for a prevailing wage determination, or appeal under Sec. 656.41.
[[Page 30480]]
6. Use of Median
Another change we are proposing is to permit an additional measure
of central tendency to be used in determining prevailing wages.
Specifically, we are proposing that employers be allowed to submit
alternative sources of wage data that provide a median wage rate for an
occupational classification.
Under the current regulations, at Sec. 656.40(a)(2)(i), the
prevailing wage is defined as:
(t)he average rate of wages, that is, the rate of wages to be
determined, to the extent feasible, by adding the wage paid to
workers similarly employed in the area of intended employment and
dividing the total by the number of such workers.
This process yields an arithmetic mean rate of wages. We propose to
allow employers to submit alternative sources of wage data that provide
the median wage rate, but do not provide the arithmetic mean of wages
of U.S. workers employed in the area of intended employment. The median
of a data set is the middle number when the measurements are arranged
in ascending (or descending) order. Allowing the use of alternative
sources of wage data that provide median wage rates would also increase
the pool of published data available for the employer to use in
obtaining valid prevailing wage surveys. Therefore, we propose to allow
the use of median wage rates as the basis for determining the
applicable prevailing wage under Sec. 656.40 of the permanent labor
certification regulations, and under Sec. 655.731(b)(3)(iii).
7. Definition of Similarly Employed
We are proposing an additional change in the H-1B and permanent
labor certification regulations to the definition of ``similarly
employed'' for purposes of determining the pool of workers to be
included in a survey conducted to arrive at the applicable prevailing
wage rate. The existing regulations, at Sec. 656.40 (b), provide that
``similarly employed'' means:
Having substantially comparable jobs in the occupational
category in the area of intended employment, except that, if no such
workers are employed by employers other than the employer applicant
in the area of intended employment, ``similarly employed'' shall
mean:
(1) Having jobs requiring a substantially similar level of
skills within the area of intended employment; or
(2) If there are no substantially comparable jobs in the area of
intended employment, ``having substantially comparable jobs with
employers outside of the area of intended employment.''
Essentially the same language is also in the H-1B regulations at
Sec. 655.731(a)(2)(iv).
Under the current regulations, the survey area should be expanded
or similar jobs considered only if there are no other employers of
workers with substantially comparable jobs in the area of intended
employment other than the employer applicant. The proposed regulatory
language would alter this construct to be more in line with the SWA's
operational practice of generally expanding the area included in the
survey whenever a representative sample of workers with substantially
comparable jobs in the area of intended employment cannot be obtained,
even if there are, in fact, one or more other employers in area who
employ such workers. The original language was promulgated at a time
when SWA's generally conducted ad hoc surveys to determine prevailing
wages. As a means to conserve resources, SWA's were instructed to
expand the geographic scope of the survey only if there were no other
employers other than the employer applicant employing workers with
substantially comparable jobs in the area. As a means to ensure the
confidentiality of the data, BLS will not publish reportable wage data
where the sample frame is such that participating employers could
readily be identified. It would be much more difficult for BLS to get
employers to participate in the survey if an iron-clad guarantee of
confidentiality could not be assured. Therefore, reportable wage data
are only published and available for alien certification purposes if a
representative sample of similarly employed workers in the area of
intended employment can be obtained. For these reasons, we are
proposing to amend the regulations to provide that the area covered by
a survey should be expanded any time it is not possible to obtain a
representative sample of similarly employed workers in the area of
intended employment.
8. Issues Specific to H-1B Program
a. Transition of H-1B Workers From Inexperienced to Experienced
After further experience with the H-1B program, we have realized
that as a result of the 3-year LCA issued under the current
regulations, a prevailing wage determination for an employee who is
inexperienced and cannot work without close supervision when originally
hired may be applicable for 3 years, despite the fact that the employee
is likely to begin working independently well before the end of the 3-
year period. We therefore propose to amend Sec. 655.731(a)(2) to
provide that where a survey that is the basis for a prevailing wage
determination contains more than one wage rate for the occupational
classification, the employer is required to pay the H-1B workers at
least the applicable wage for the work performed. In other words, as an
entry-level worker gains experience and is able to work independently,
the applicable prevailing wage would be the wage from the same survey
for workers who work independently. Since at all times the prevailing
wage would be the applicable rate from the survey that was the basis
for the initial wage determination, we believe this is consistent with
the statutory mandate that the prevailing wage be based on the best
information available as of the time of filing the application.
b. Appeals by Employees and Other Interested Parties
We are also considering providing employees and other interested
parties the right to appeal determinations of the prevailing wage made
by ETA at the request of the Administrator of the Wage and Hour
Division under Sec. 655.731(d). Although we consider this to be a
procedural matter not requiring notice and comment under the
Administrative Procedure Act, we are seeking comments on the
advisability of providing such appeal rights and the methodology to be
used in administering appeals that may be made by interested parties
other than employers. Commenters are invited to submit comments on
these issues.
R. ETA Prevailing Wage Panel
Currently, SWA's provide PWD's to employers that wish to file
applications to obtain alien workers under the H-1B (professionals in
specialty occupations), H-1C (registered nurses at eligible health care
facilities), and H-2B (nonagricultural temporary labor) nonimmigrant
programs, and the labor certification process for the permanent
employment of aliens in the United States. Under GAL 2-98, employers
intending file applications under one of the nonimmigrant programs can
only challenge the PWD through the Employment Service Complaint System
(ESCS). See 20 CFR 658, subpart E. Employers that intend to file
applications in the permanent alien labor certification program, on the
other hand, may file appeals about SWA PWD's directly with the
Certifying Officers. The challenges filed directly with Certifying
Officers tend to be resolved more quickly than those filed in the ESCS.
The existence of these two different systems of dealing with prevailing
wage challenges has proven
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to be confusing to employers, needlessly complicated, and time
consuming. The resulting confusion on the part of employers is
understandable since the prevailing wage methodology to determine
prevailing wages for all programs is based on the regulation governing
the determination of prevailing wages for the permanent program at 20
CFR 656.40.
The current structure in place for administering the PWD process
and handling prevailing wage challenges has caused some inconsistency
in the issuance of PWD's and the response to prevailing wage
challenges. There are currently 9 Certifying Officers who provide
oversight to the SWA's within their jurisdiction over the day-to-day
operations involved in the issuance of prevailing wages to employers.
Each of the 9 Certifying Officers have responsibility for resolving
such challenges submitted by employers wishing to file permanent
applications for alien employment certification.
To improve customer service and to enhance consistency in the day-
to-day administration of the PWD process and in the resolution of
challenges to PWD's, we propose to establish a prevailing wage panel
(PWP) to adjudicate all complaints, arising from the PWD process. This
would include, in the case of the H-1B program, not only those
challenges that may be filed in response to the initial receipt of a
PWD by the employer from a SWA, but also those instances when the
Administrator of the Wage and Hour Division receives a PWD from ETA in
the course of an enforcement action under to 20 CFR 656.731(d)(2). In
those instances where the Wage and Hour Administrator obtains a
prevailing wage from ETA, we anticipate that the Administrator when he/
she informs the employer of the RD's determination, will also inform
the employer that it may appeal the determination through the PWP and
the procedures for filing such appeals.
By centralizing the review process in a single adjudicative body,
we hope to increase the consistency of the decisions and establish
clearly defined precedents governing the issuance of PWD's and the
standards governing the use of alternative sources of wage data
submitted by employers. We anticipate that the PWP will deal primarily
with prevailing wage challenges arising from SWA determinations
rejecting alternative sources of wage data. We anticipate that such
challenges arising from the use of OES prevailing wage data will
involve primarily, if not exclusively, questions as to whether the job
was coded properly in terms of the occupational classification and the
level of skill applied, and on whether the survey was based on the
appropriate geographical area.
The size and composition of the PWP will be determined by the
Chief, Division of Foreign Labor Certifications, and is subject to
change depending upon the volume and complexity of employer challenges
to be considered. We propose that the staffing of the panel may include
SWA and Federal staff with experience in the prevailing wage determines
area, and may also include specialists in survey methodology, PWD's,
and occupational analysis and classification.
We are proposing that the employer must request, in writing, review
of a PWD by the PWP in writing within 21 calendar days of the date the
SWA issued the determination. The appeal must be mailed to the SWA that
issued the prevailing wage determination. The appeal must set forth the
particular grounds for the request and include copies of any of the
materials submitted by the employer to the SWA pertaining to the PWD up
until the determination date entered on the PWDR form by the SWA and
copies of all the documents received from the SWA concerning the PWD.
Failure to file a request for review would constitute a failure to
exhaust administrative remedies.
The SWA would then send a copy of the employer's appeal, including
any material added by the SWA, to the PWP, and would also send a copy
of the appeal file as sent to the PWP to the employer. The employer
would be able to furnish or suggest directly to the PWP the addition of
any documentation that is not among the materials sent to the PWP by
the SWA.
The PWP will review the SWA PWD solely on the basis upon which the
PWD was made. The employer would have 21 days after receipt of the
decision of the PWP to request a review by BALCA.
As explained above, although the proposed prevailing wage
regulation deletes the use of DBA and SCA wage determinations, we seek
comments on a proposed procedure providing for review of DBA and SCA
wage determinations pending analysis of the comments received on the
proposed rule. Accordingly, in the event we conclude that SCA and DBA
wage determinations should be retained in the regulation, we propose to
handle requests for review of PWD's based on DBA and SCA wage rates
under the review procedures established by the Employment Standards
Administration (ESA) for interested parties to obtain review of such
rates at 29 CFR 1.8 and 7, subpart B in the case of DBA wage
determinations and at 29 CFR 4.55, 4.56 and 8, subpart B in the case of
SCA wage determinations. This procedure would enhance administrative
consistency in the administration of the DBA and SCA, and would provide
for administrative review in the agency with expertise. The current
labor certification regulations and the proposed rule, in relevant
part, contain a provision that reads as follows:
If the job opportunity is in an occupation which is subject to a
wage determination in the area under the Davis-Bacon Act * * * or
the McNamara O'HARA Service Contract Act * * *, the prevailing wage
shall be at the rate required under the statutory determination.
Certifying Officers shall request the assistance of the DOL
Employment Standards wage specialists if they need assistance in
making this determination.
Before the decision of BALCA in El Rio Grande, it had been our
position that Certifying Officers did not have the authority to
determine whether or not to use an SCA or DBA wage determination in the
labor certification context and that BALCA did not have the authority
to review challenges to PWD's based on a SCA wage determinations. In El
Rio Grande, however, BALCA held that:
The regulatory language * * * places the ultimate responsibility
for the SCA wage determination in a labor certification context on
the CO, and only places Wage and Hour Division in an advisory role.
Morever, the regulatory framework does not provide employers in
labor certification proceedings the right to challenge SCA wage
determinations through the Wage and Hour appeal procedures at 29 CFR
4.55, 4.56, and 8.2. Accordingly, we conclude that the Board of
Alien Labor Certification appeals has jurisdiction, indeed the
obligation, to review challenges to SCA wage determinations made by
Cos pursuant to 20 CFR 655.40(a)(1).
Although the Board's decision in El Rio Grande did not specifically
address DBA wage determinations, it would in all probability be equally
applicable to DBA wage determinations, since they are used the same way
SCA wage determinations are used in the labor certification regulations
and the current review procedures established for DBA wage
determinations do not provide employers in labor certification
proceedings the right to challenge SCA wage determinations through the
appeal procedures at 29 CFR 1.8 and 7, subpart B.
Executive Order 12866: We have determined that this proposed rule
is not an ``economically significant regulatory action'' within the
meaning of Executive Order 12866. The direct incremental costs
employers would incur because of this rule, above business practices
required by the current rule of employers that are applying for
permanent alien workers
[[Page 30482]]
will not amount to $100 million or more or adversely affect in a
material way the economy, a sector of the economy, productivity,
competition, jobs, the environment, public health or safety, or State,
local or tribal governments or communities. The Department believes
that any potential increase in recruitment and recordkeeping costs
associated with the proposed rule would be more than offset by the
combination of eliminating the role of the SWA's in the recruitment
process and, consequently, eliminating the time employer's currently
spend in working with SWA's to meet regulatory requirements. Further,
the expected large reduction in average processing time to process
applications will lead to a reduction in the resources employers spend
on processing applications and will eliminate the need of the
Department to periodically institute special, resource intensive
efforts to reduce backlogs which have been a recurring problem under
the current process. Any cost savings realized, however, will not be
greater than $100 million. Public comment is requested on this issue.
While it is not economically significant, the Office of Management
and Budget (OMB) reviewed the proposed rule because of the novel legal
and policy issues raised by this rulemaking.
Regulatory Flexibility Act: The proposed rule would only affect
those employers seeking immigrant workers for permanent employment in
the United States. We have notified the Chief Counsel for Advocacy,
Small Business Administration, and made the certification pursuant to
the Regulatory Flexibility Act at 5 U.S.C. 605(b), that the proposed
rule will not have a significant economic impact on a substantial
number of small entities.
Unfunded Mandates Reform Act of 1995: This rule will not result in
the expenditure by State, local and tribal governments, in the
aggregate, or by the private sector, of $100 million or more in any 1
year, and it will not significantly or uniquely affect small
governments. Therefore, no actions are deemed necessary under the
provisions of the Unfunded Mandates Reform Act of 1995.
Small Business Regulatory Enforcement Fairness Act of 1996: This
rule is not a major rule as defined by section 804 of the Small
Business Regulatory Enforcement Act of 1996. It will not result in an
annual effect on the economy of $100 million or more; a major increase
in costs or prices; or significant adverse effects on competition,
employment, investment, productivity, innovation, or on the ability of
United States-based companies to compete with foreign-based companies
in domestic and export markets.
Executive Order 13132: This proposed rule will not have a
substantial direct effects on the States, on the relationship between
the National Government and the States, or on the distribution of power
and responsibilities among the various levels of government. Therefore,
in accordance with Executive Order 13132, we have determined that this
rule does not have sufficient federalism implications to warrant the
preparation of a summary impact statement.
Assessment of Federal Regulations and Policies on Families: The
proposed regulation does not affect family well-being.
Paperwork Reduction Act
Summary:. This NPRM contains revised paperwork requirements at
sections 655.731, 656.10, 656.14, 656.15, 656.16, 656.17, 656.18,
656.19, 656.21, 656.24 , 656.26, 656.40 and 656.41. The revised
paperwork requirements are necessary to implement a streamlined system
to process and adjudicate applications for permanent labor
certification.
Published at the end of this NPRM are two forms that would be
required to implement the streamlined process for the permanent labor
certification program. One form is the Prevailing Wage Determination
Request (PWDR) (ETA Form 9098) and the other is be the Application for
Permanent Labor Certification (ETA Form 9099). Supporting documentation
would not have to be submitted with an application, but employers would
be required to assemble and maintain required supporting documentation
and be able to produce suc
