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December 27, 2004

Part II

Department of Labor
Employment and Training Administration

20 CFR Parts 655 and 656
Labor Certification for the Permanent
Employment of Aliens in the United
States; Implementation of New System;
Final Rule

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DEPARTMENT OF LABOR certification of permanent employment refers to the regulation in 20 CFR part
of immigrant labor in the United States. 656 as published in April 2004 and
Employment and Training The NPRM also proposed amending the amended by 69 FR 43716.
Administration regulations governing employer wage The current process for obtaining a
obligations under the H–1B program. 67 labor certification requires employers to
20 CFR Parts 655 and 656 FR 30466 (May 6, 2002). Comments file a permanent labor certification
were invited through July 5, 2002. application with the SWA serving the
RIN 1205–AA66
area of intended employment and, after
II. Statutory Standard filing, to actively recruit U.S. workers in
Labor Certification for the Permanent
Employment of Aliens in the United Before the Department of Homeland good faith for a period of at least 30 days
States; Implementation of New System Security (DHS) may approve petition for the job openings for which aliens are
requests and the Department of State sought.
AGENCY: Employment and Training (DOS) may issue visas and admit certain Job applicants are either referred
Administration, Labor. immigrant aliens to work permanently directly to the employer or their
ACTION: Final rule. in the United States, the Secretary of résumés are sent to the employer. The
Labor must certify to the Secretary of employer has 45 days to report to either
SUMMARY: The Department of Labor State and to the Secretary of Homeland the SWA or an ETA backlog processing
(DOL) is amending its regulations Security: center or regional office the lawful job-
governing the filing and processing of (a) There are not sufficient United related reasons for not hiring any
labor certification applications for the States workers who are able, willing, referred qualified U.S. worker. If the
permanent employment of aliens in the qualified, and available at the time of employer hires a U.S. worker for the job
United States to implement a new the application for a visa and admission opening, the process stops at that point,
system for filing and processing such into the United States and at the place unless the employer has more than one
applications. The new system requires where the alien is to perform the work; opening, in which case the application
employers to conduct recruitment and may continue to be processed. If,
before filing their applications. State (b) The employment of the alien will however, the employer believes able,
Workforce Agencies (SWAs) will not adversely affect the wages and willing, and qualified U.S. workers are
provide prevailing wage determinations working conditions of similarly not available to take the job, the
to employers, but will no longer receive employed United States workers. 8 application, together with the
or process applications as they do under U.S.C. 1182(a)(5)(A). documentation of the recruitment
the current system. Employers will be If the Secretary of Labor, through the results and prevailing wage information,
required to place a job order with the Employment and Training is sent to either an ETA backlog
SWA, but the job order will be Administration (ETA), determines there processing center or ETA regional office.
processed the same as any other job are no able, willing, qualified, and There, it is reviewed and a
order. Employers will have the option of available U.S. workers and employment determination made as to whether to
filing applications electronically, using of the alien will not adversely affect the issue the labor certification based upon
web-based forms and instructions, or by wages and working conditions of the employer’s compliance with
mail. similarly employed U.S. workers, DOL applicable labor laws and program
DATES: Effective Date: This final rule is so certifies to the Department of regulations. If we determine there are no
effective on March 28, 2005, and applies Homeland Security and to the able, willing, qualified, and available
to labor certification applications for the Department of State by issuing a U.S. workers, and the employment of
permanent employment of aliens filed permanent alien labor certification. the alien will not adversely affect the
on or after that date. If DOL can not make both of the above wages and working conditions of
findings, the application for permanent similarly employed U.S. workers, we so
alien employment certification is certify to the DHS and the DOS by
PERM Help Desk, Division of Foreign denied. issuing a permanent labor certification.
Labor Certification, Employment and See 20 CFR part 656 (April 2004) as
Training Administration, 200 III. Current Department of Labor
amended by 69 FR 43716 (July 21,
Constitution Avenue, NW., Room C– Regulations
2004); see also section 212(a)(5)(A) of
4312, Washington, DC 20210. DOL has promulgated regulations, at the INA, as amended.
Telephone (202) 693–3010 (this is not a 20 CFR part 656, governing the labor
toll free number). Questions may be sent certification process for the permanent IV. Overview of the Regulation
via e-mail to the following address ‘‘ employment of immigrant aliens in the This final rule deletes the current We encourage United States. Part 656 was promulgated language of 20 CFR part 656 and
questions to be submitted by e-mail, under Section 212(a)(14) of the replaces the part in its entirety with new
because the Division of Foreign Labor Immigration and Nationality Act (INA) regulatory text, effective on March 28,
Certification intends to post responses (now at Section 212(a)(5)(A)). 8 U.S.C. 2005. This new regulation will apply to
to frequently asked questions on its Web 1182(a)(5)(A). all applications filed on or after the
site ( Part 656 sets forth the responsibilities effective date of this final rule.
) and e-mail submission of questions of employers who desire to employ Applications filed before this rule’s
will facilitate thorough consideration immigrant aliens permanently in the effective date will continue to be
and response to questions. United States. Part 656 was recently processed and governed by the current
SUPPLEMENTARY INFORMATION amended through an Interim Final Rule regulation, except to the extent an
effective on August 20, 2004, which employer seeks to withdraw an existing
I. Introduction added measures to address a backlog in application and refile it in accordance
On May 6, 2002, the Department permanent labor certification with the terms of this final rule.
published in the Federal Register a applications waiting processing. 69 FR On December 8, 2004, the President
Notice of Proposed Rulemaking (NPRM) 43716 (July 21, 2004). When this final signed into law the Consolidated
to amend its regulations for the rule refers to the ‘‘current regulation,’’ it Appropriations Act, 2005. This

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Federal Register / Vol. 69, No. 247 / Monday, December 27, 2004 / Rules and Regulations 77327

legislation amends Section 212(p) of the successful and to be used by the Petition for Alien Worker (DHS Form I–
INA, 8 U.S.C. 1182(p), to provide that: overwhelming majority of employers 140).
(3) The prevailing wage required to be paid filing applications. Employers will Because we do not yet have the
pursuant to (a)(5)(A), (n)(1)(A)(i)(II) and receive more prompt adjudication of technology to satisfy the statutes that
(t)(1)(A)(i)(II) shall be 100 percent of the wage their applications than would have been deal with electronic signatures on
determined pursuant to those sections. the case under a system that permitted Government applications—the
(4) Where the Secretary of Labor uses, or only submission of applications by Government Paperwork Elimination Act
makes available to employers, a facsimile transmission or by mail. The (44 U.S.C. 3504 n.) and/or the Electronic
governmental survey to determine prevailing
wage, such survey shall provide at least 4
new form—Application for Permanent Records and Signatures in Global and
levels of wages commensurate with Employment Certification (ETA Form National Commerce Act (E–SIGN) (15
experience, education, and the level of 9089)—has been designed to be U.S.C. 7001—7006)—we are not
supervision. Where an existing government completed in a web-based environment implementing either of these statutes in
survey has only 2 levels, 2 intermediate and submitted electronically or to be this final rule. In the event such
levels may be created by dividing by 3 the completed by hand and submitted by technology becomes available in the
difference between the two levels offered, mail. future, we will modify the electronic
adding the quotient thus obtained to the first
level, and subtracting that quotient from the
The preamble to the proposed rule process for filing and certifying
second level. indicated that, initially, if a processing applications for permanent alien
fee was not implemented, employers employment to comply with these
The 100 percent requirement is would be allowed to submit statutes, and will provide appropriate
consistent with this final rule. The applications by facsimile transmission notice(s) and instructions to employers.
Department will be preparing guidance or by mail. DOL, however, has decided We view it as inadvisable to delay the
concerning the implementation of the 4 employers will not be permitted to electronic filing and certifications
levels of wages. submit applications by facsimile. Our system while we develop this additional
The process for obtaining a permanent
experience with facsimile transmission technology. When the statutes that deal
labor certification has been criticized as
under the H–1B program has been with electronic signatures are
being complicated, time consuming, and
considerably less than optimal. It implemented, all electronic filings will
requiring the expenditure of
considerable resources by employers, should also be noted employers do not require such signatures. We are,
State Workforce Agencies and the have such an option under the current however, implementing use of a PIN/
Federal government. The new system is regulations for the permanent labor Password system in the interim.
designed to streamline processing and certification program. As indicated above, a complete
ensure the most expeditious processing To accommodate electronic filing, a application will consist of a single form:
of cases, using the resources available. complete application will consist of one ETA Form 9089. The majority of the
The new system requires employers to form. The new form, ETA Form 9089, items on the application form consist of
conduct recruitment before filing their will contain additional ‘‘blocks’’ to be questions that require the employer to
applications. Employers are required to marked by the employer to acknowledge check Yes, No, or NA (not applicable) as
place a job order and two Sunday that the submission is being made a response. These questions and other
newspaper advertisements. If the electronically and that information information required by the application
application is for a professional contained in the application is true and form elicit information similar to that
occupation, the employer must conduct correct. We have developed a customer- required by the current labor
three additional steps that the employer friendly Web site (http:// certification process. For example, the
chooses from a list of alternative wage offered on the application form
recruitment steps published in the foreign/) that can be accessed by must be equal to or greater than the
regulation. The employer will not be employers to electronically fill out and prevailing wage determination provided
required to submit any documentation submit the form. The Web site includes by the SWA. The application form also
with its application, but will be detailed instructions, prompts, and requires the employer to describe the
expected to maintain the supporting checks to help employers fill out the job and specific skills or other
documentation specified in the form. The Web site also provides an requirements.
regulations. The employer will be option to permit employers that The employer will not be required to
required to provide the supporting frequently file permanent applications provide any supporting documentation
documentation in the event its to set up secure files within the ETA with its application but must maintain
application is selected for audit and as electronic filing system containing and, when requested by the Certifying
otherwise requested by a Certifying information common to any permanent Officer, furnish documentation to
Officer. application they file. Under this option, support its answers, attestations and
This final rule also provides each time an employer files an ETA other information provided on the form.
employers with the option to submit Form 9089, the information common to The standards used in adjudicating
their forms either electronically or by all of its applications, e.g., employer applications under the new system will
mail directly to an ETA application name, address, etc., will be entered be substantially the same as those used
processing center. A number of automatically, and the employer will in arriving at a determination in the
commenters indicated they wanted the have to enter only the data specific to current system. The determination will
option of filing electronically. Since the application at hand. still be based on: whether the employer
January 14, 2002, employers have been Electronic submission and has met the procedural requirements of
allowed to submit Labor Condition certification requires ETA Form 9089 be the regulations; whether there are
Applications (LCAs) electronically printed out and signed by the employer insufficient U.S. workers who are able,
under the nonimmigrant H–1B program, immediately after DOL provides the willing, qualified and available; and
which has been very successful. certification. A copy of the signed form whether the employment of the alien
Similarly, we expect electronic filing of must be maintained in the employer’s will have an adverse effect on the wages
applications for permanent alien files, and the original signed form must and working conditions of U.S. workers
employment certification to be be submitted to support the Immigrant similarly employed.

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77328 Federal Register / Vol. 69, No. 247 / Monday, December 27, 2004 / Rules and Regulations

Many commenters were concerned If an application has not been selected In all instances in which an
about the potential for fraud, for audit, and satisfies all other reviews, application is denied, the notification
misrepresentation, and non-meritorious the application will be certified and will set forth the deficiencies upon
applications in an attestation-based returned to the employer. The employer which the denial is based. The employer
system. Some, but not all, of the must immediately sign the application will be able to seek administrative-
measures we have taken to minimize and then submit the certified judicial review of a denial by the Board
these problems, include: a review of application to DHS in support of an of Alien Labor Certification Appeals
applications, upon receipt, to verify the employment-based I–140 petition. We (BALCA).
existence of the employer and to verify anticipate an electronically filed
the employer has employees on its Excepted Occupations in Team Sports
application not selected for audit will
payroll, and the use of auditing have a computer-generated decision The preamble to the NPRM made no
techniques that can be adjusted as within 45 to 60 days of the date the mention of the special procedures used
necessary to maintain program integrity. application was initially filed. in processing applications on behalf of
The concerns about fraud and the If an application is selected for audit, certain aliens to be employed in
measures we will implement to address the employer will be notified and professional team sports. Those special
such concerns are discussed below in required to submit, in a timely manner, procedures have been in place for over
greater detail. documentation specified in the 25 years and it was not our intent to
SWAs will no longer be the intake regulations to verify the information modify those procedures as a result of
point for receipt of applications for stated in or attested to on the this rulemaking. Employers filing
permanent alien employment application. Upon timely receipt of an applications on behalf of aliens to be
certification and will not be required to employer’s audit documentation, it will employed in professional team sports
be the source of recruitment and referral be reviewed by ETA personnel. If the will continue to use the existing special
of U.S. workers as they are in the employer does not submit a timely procedures and will continue to file
current system. The required role of response to the audit letter, the their applications using the Application
SWAs in the redesigned permanent application will be denied. If the audit for Alien Employment Certification
labor certification process will be documentation is complete and (ETA 750). ETA intends to issue a
limited to providing prevailing wage consistent with the employer’s directive detailing the procedures to be
determinations (PWD). Employers will statements and attestations contained in followed in filing applications on behalf
be required to obtain a PWD from the the application, and not deficient in any of aliens to be employed in professional
SWA before filing their applications team sports.
material respect, the application will be
with DOL. The SWAs will, as they do
certified the employer will be notified. V. Discussion of Comments on Proposed
under the current process, evaluate the
If the audit documentation is Rule
particulars of the employer’s job offer,
incomplete, is inconsistent with the
such as the job duties and requirements We received a total of 195 comments
employer’s statements and/or
for the position and the geographic area from attorneys, educational institutions,
attestations contained in the
in which the job is located, to arrive at individuals, businesses and SWAs. Most
application, or if the application is
a PWD. of the commenters were critical of one
The combination of pre-filing otherwise deficient in some material
or more of the changes, and suggested
recruitment, providing employers with respect, the application will be denied
alternatives and improvements. Some
the option to complete applications in a and a notification of denial with the
commenters suggested abandonment of
web-based environment, automated reasons therefore will be issued to the
the proposed system entirely.
processing of applications including employer. However, on any application,
those submitted by mail, and the CO will have the authority to A. Fraud, Program Abuse, and Non-
elimination of the SWA’s required role request additional information before Meritorious Applications
in the recruitment process will yield a making a final determination. Many commenters expressed
large reduction in the average time The CO may also order supervised concerns about the potential for fraud,
needed to process labor certification recruitment for the employer’s job program abuse, and the filing of non-
applications. The redesigned system opportunity, such as where questions meritorious applications in an
should also eliminate the need to arise regarding the adequacy of the attestation-based system. Some
institute special resource-intensive employer’s test of the labor market. The commenters suggested a two-tier system
efforts to reduce backlogs, which have supervised recruitment that may be for processing applications to address
been a recurring problem. required is similar to the current an expected increase in fraudulent or
After ETA’s initial review of an regulations for recruitment under basic non-meritorious applications.
application has determined that it is processing, which requires placement of
acceptable for processing, a computer advertisements in conjunction with a 1. Concerns About Fraud, Program
system will review the application 30-day job order by the employer. The Abuse, and Non-Meritorious
based upon various selection criteria recruitment, however, will be Applications
that will allow problematic applications supervised by ETA COs instead of the Numerous commenters believed the
to be identified for audit. Additionally, SWAs. At the completion of the proposed system would be more
as a quality control measure, some supervised recruitment effort, the susceptible to fraud and non-
applications will be randomly selected employer will be required to document meritorious applications than the
for audit without regard to the results of in a recruitment report the outcome of current system. The Federation for
the computer analysis. DOL has such effort, whether successful or not, American Immigration Reform (FAIR)
incorporated identifiers into the and if unsuccessful, the lawful job- was of the opinion the review process
processing system, which are used to related reasons for not hiring any U.S. in the proposed rule would not meet the
select cases for audit based upon workers who applied for the position. legal standard in INA section
program requirements. In some Upon review of the employer’s 212(a)(5)(A). A couple of commenters
instances, DOL will be confirming documentation, the CO will either emphasized the need to provide for
specific information with employers. certify or deny the application. meaningful enforcement.

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A SWA noted its application ensure the employer is aware that the of State, as examples of how such a
cancellation and withdrawal rate of 15 application was filed on its behalf. program could work. A third university
percent, and stated the incidence of Finally, we intend to explore means of suggested alternatives to the random
fraud and abuse of the current system coordination with the SWAs, which audit of what it referred to as the
suggests a need for tighter controls, retain responsibility for making ‘‘automated electronic labor certification
rather than a process that relies on prevailing wage determinations, in request method.’’ One alternative was to
employer self-attestations. Another order to avail ourselves of state implement an Established Users
SWA expressed concern that many expertise regarding the local employer Program whereby university, non-profit
instances of fraud would not be community and the local labor market. research, and government institutions
apparent to the CO, who would be Regarding the imposition of civil could be trained and certified in the
relatively unfamiliar with the situation money penalties and other penalties, we submission of electronic labor
in individual states. are not imposing such penalties in this certification requests. Another
A DOL employee expressed concern final rule. We have concluded that alternative was to require these
about the increasing number of before making such fundamental institutions to submit an annual report
permanent applications not supported changes in the program we should to DOL based on pre-determined
by an actual job location or position, or publish proposed penalties for notice specifications.
for which there is no bona fide and comment in another NPRM. ACIP also referenced the blanket L
employer signature. The commenter We plan to minimize the impact of and J visas and proposed that
also believed the pre-filing recruitment non-meritorious applications by attestation-based filing be reserved for
would increase opportunities for adjusting the audit mechanism in the two categories of applications that
employers to avoid hiring qualified U.S. new system as needed. We have the would qualify for a ‘‘pre-certification
workers. authority under the regulations to track.’’ One category would focus on the
Several commenters expressed increase the number of random audits or employer and the employer’s track
concern about the lack of hands-on change the criteria for targeted audits. record with DOL; this would include
review. These commenters included the As we gain program experience, we will employers who showed they were good-
American Council of International adjust the audit mechanism as necessary faith users of the system by meeting
Personnel (ACIP), the American to maintain program integrity. We also certain specified criteria. The other
Federation of Labor and Congress of note that under section 656.21(a) the CO category would focus on the nature of
Industrial Organizations (AFL–CIO), has the authority to order supervised the occupation and shortages in the
FAIR, and various SWAs. ACIP believed recruitment when he or she determines economy; this would include
the proposed rule’s audit and it to be appropriate. occupations listed on an updated
enforcement procedures would not act Schedule A. Applications in either of
2. Proposals for a Two-Tier System
as effective deterrents to fraud and these two categories would have no
misrepresentation. The AFL–CIO Several commenters believed the specific recruitment requirements. All
considered a thorough manual review of automated processing under the new other applications would be processed
labor certification applications to be, at system would lead to a flood of non- on a ‘‘standard’’ track; these
times, the sole protection of American meritorious applications that would applications would have requirements
workers. One commenter suggested DOL clog the system. ACIP, for example, similar to, but less than, the current
impose penalties similar to those used worried a large increase in fraudulent requirements for Reduction in
in the H–1B program, such as civil applications could lead to long backlogs Recruitment (RIR) processing.
money penalties and debarment from and possibly an oversubscription of visa Two high-tech companies supported
the labor certification program, for numbers. To address the potential flood ACIP’s call for a pre-certification
employers who file fraudulent of non-meritorious applications, ACIP, procedure for established users. One
applications. the American Immigration Lawyers also recommended only publicly traded
We believe commenters exaggerate Association (AILA), and others companies be allowed to use an
the current system’s ability to identify proposed a two-track system for attestation-based system because these
fraud and underestimate the new processing applications. Many companies would be far less likely to
system’s ability to deter it. We agree proponents of a two-track system file fraudulent applications.
with the commenters that fraud is a observed by devoting fewer resources to Another commenter favored a two-tier
serious problem. As a result of our readily approvable applications, DOL system that categorized applications
program experience, we envision a could devote more resources to more based on their job requirements. Tier 1
review of applications, upon receipt, to problematic cases. would be reserved for applications that
check among other things, the bona The proposals for a two-track system contained no special skills, no
fides of the employer. Additionally, we varied, but all envisioned a category of experience exceeding the specific
intend to aggressively pursue means by employers or jobs that would qualify for vocational preparation (SVP) level for
which to identify those applications that special treatment. Three universities the position, etc. Tier 1 applications
may be fraudulently filed. proposed creating a class of ‘‘registered’’ would be filed according to the
Our initial review will verify whether or ‘‘established’’ users, whose procedures outlined in the proposed
the employer-applicant is a bona fide applications would be exempt from rule. All other applications would fall
business entity and has employees on random audit but who would have to into Tier 2, and would be filed
its payroll. For example, the employer’s file annual reports with DOL. Two of according to the procedures for basic
tax identification number could be these commenters explained how processing under current regulations.
crosschecked with available off-the- established users could be identified: AILA recommended integrating an
shelf software used by credit-reporting Employers could submit an application RIR option into the new system, to
agencies; we may also use off-the-shelf form to DOL, which could review the accommodate employers that conduct
commercial products such as the employers’ history of labor certification ongoing recruitment for multiple
American Business Directory or similar filings. The two commenters pointed to openings, and that might fail to satisfy
compendiums of employers in the U.S. the blanket L program, run by DHS, and the recruitment requirements outlined
We also intend to conduct checks to the J–1 program, run by the Department in the proposed rule. To do this, DOL

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77330 Federal Register / Vol. 69, No. 247 / Monday, December 27, 2004 / Rules and Regulations

would need to set standards in three different approach to case processing belief, to require an audit of any
areas: RIR eligibility, recruitment than the approach outlined in the application within the SWA’s
requirements, and reporting recruitment proposed rule. Some of the proposals for jurisdiction; and
results. AILA suggested recruitment be a two-track system and Established • Require notices posted pursuant to
required over only a 2 or 3 month Users program are fairly detailed; others 20 CFR 656.10(d) to include the name,
period. are less clear. None of the proposals address, and contact information for the
AILA also proposed expanding could be adopted as described in the local SWA where a complaint may be
Schedule A to include a special group comments. We do not believe the filed.
for labor shortages by geographic area, arguments made in favor of a two-track The AFL–CIO viewed limiting the
to respond to acute labor shortages in a system are sufficiently compelling to role of the SWA to providing PWDs as
timely manner. AILA was of the opinion justify formulating a new proposed rule. a severe deficiency of the new system
that substantial data on job openings in Some of the proposals for a two-track that would lead to increased fraud and
particular labor market areas could be system envision aggressive management abuse.
extracted from the attestation-based of Schedule A, to reflect more current Because of resource constraints,
applications, and this data could be shortages in the labor market. We among other things, state processing
used to determine when and where believe it would be inappropriate to adds considerable time to the processing
labor shortages occur or disappear. make changes to Schedule A in this of applications in the current system.
The single-track, attestation-based final rule. However, it may be We believe we can retain the benefits of
system outlined in the proposed rule productive to consider whether we state labor market expertise without
was designed to ensure the most could create a more flexible Schedule A having state staff processing
expeditious processing of cases, using in the future. See our discussion of applications and thereby save
the resources available. We do not Schedule A in Section D below. significant processing time and expense.
believe a two-track system would result We view centralized application
in significant, if any, savings of time and B. Role of the State Workforce Agencies processing as a customer-friendly
resources. Proponents of a two-track Under the proposed system, SWAs change that will simplify the labor
system provide no statistical evidence of will no longer receive or review certification application process,
potential savings gained by establishing applications. They will, however, remove duplicative efforts that occur at
a pre-certification track. Any savings continue to provide PWDs. the state and Federal levels, and result
may be offset by the costs of establishing in greater consistency in the
and administering a two-track system. 1. Loss of State Workforce Agency adjudication of cases.
They may also be offset by an increase Expertise We believe the COs possess sufficient
in the amount of resources needed to Many commenters expressed knowledge of local job markets,
process the ‘‘second’’ track of cases. concerns about the loss of SWA recruitment sources, and advertising
Most of the proposals for a two-track expertise on local labor markets as a media to administer the program
system envision fewer, if any, result of centralized processing. appropriately. We have acquired much
recruitment requirements for one A few commenters felt the revised expertise during our administration of
category of employers or applications. process would not be more efficient the current system and expect to
Under ACIP’s proposal, all applications because the additional workload maintain this expertise under the new
would have fewer recruitment associated with cases pulled for audit system. Currently, we assess the
requirements than they would have would exceed the resources available to adequacy of the recruitment before
under the proposed regulations. Were the COs and would result in backlogs. making a final determination in each
we to adopt any one of these proposals, Another commenter felt the shift in case. We will be making similar
the Secretary of Labor would be unable workload from the SWAs to the COs judgments under the new system in the
to carry out the statutory obligation to would place unnecessary burdens on course of making determinations on the
certify that no U.S. qualified workers are COs who may not have extensive labor certifications, auditing
available. For example, under an knowledge of local labor markets or applications and in overseeing any
established users program, employers experience in navigating the various supervised recruitment.
could qualify on the basis of their state employment service systems. Guam requested it be allowed to
history of filings. However, an Another commenter contended the continue its current role in processing
employer’s past practice has no bearing proposed rule failed to consider that labor certifications. We do not believe
on whether qualified U.S. workers are many employers, unfamiliar with the Guam’s circumstances are so unique
available for the current job opening. labor certification process and without that it must have a role in processing the
Additionally, economic conditions may the assistance of attorneys or applications to protect the wages and
change radically over time, which representatives, routinely file incorrect working conditions of U.S. workers. Its
would justify a different approach to or incomplete applications. This role under the current permanent labor
assess whether qualified U.S. workers commenter envisioned that without the certification regulations is no different
were available. Further, because the benefit of the SWA’s expertise, the than of the other states and territories
proposed system is new and contains increase in correspondence between that have a role in the current
new recruitment requirements, at least employers and regional offices would permanent labor certification program.
for the first few years there would be no lead to backlogs similar to those under
appropriate past practice to review. 2. Job Bank Orders
the current system.
Comparisons to the L and J programs are FAIR recommended the following One commenter inquired how DOL
also inappropriate. Both of these revisions: intends to verify job order referrals with
programs involve temporary visas, and • Give COs discretion to forward any SWA staff, screen résumés received
neither depends upon the unavailability labor certification application selected while conducting supervised
of U.S. workers. for audit to a SWA for confirmation; recruitment, verify layoffs have not
Finally, all of the suggestions for a • Authorize SWAs, based on a occurred in the last 6 months in the area
two-track system do more than modify ‘‘reasonable-basis’’ complaint from the of intended employment, verify the
the proposed rule; they envision a public or on their own information and employer is a bona fide employer with

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an active Federal Employer noted, however, all such activities are wage rates vary with commuting
Identification Number (FEIN), and within the scope of the Wagner-Peyser distance.
answer employer questions and provide Act, that processing job orders required
2. Definition of the Employer and
technical assistance. The commenter under this final rule are covered by
recommended the continued existing Wagner-Peyser grants, and we
involvement of SWAs in conducting are not required to provide additional The definition of employer in the
supervised recruitment for employers in funds to the SWAs. proposed rule reflected longstanding
their states. DOL policy, and has been modified to
Another commenter was concerned C. Definitions, for Purposes of This Part,
ensure that persons who are temporarily
the proposed rule does not specifically of Terms Used in This Part
in the United States can not be
authorize states to reject illegal The proposed rule made several employers for the purpose of obtaining
specifications in job orders or make it changes in § 656.3 to the definitions of a labor certification. In addition, the
clear the SWA has this authority. the terms used in part 656. definition of employment has been
Therefore, this commenter modified to specify that job duties
recommended DOL add a provision to 1. Definition of the Area of Intended
performed totally outside the United
reinstate the ban against illegal job Employment
States can not be the subject of a
duties and requirements, and to make it The proposed rule defines an ‘‘area of permanent application for alien
clear that employers who refuse to intended employment’’ as the area employment certification.
delete illegal duties or requirements will within normal commuting distance of Some commenters touched on the
not be allowed to submit their the place (address) of intended definition of ‘‘employer.’’ A DOL
application. employment. There is no rigid measure employee proposed amendments to the
Still another commenter noted under of distance that constitutes a normal definition of employer to address
the proposed rule all jobs must be listed commuting distance or normal situations in which all workers at the
in a Job Bank, which will result in an commuting area because there may be place of employment are independent
increased burden on the SWAs. The widely varying factual circumstances contractors and the creation of an
commenter suggested if user fees are not among different areas. If the place of employee position is contingent on the
required, the Federal government intended employment is within a granting of a labor certification. The
should cover this additional cost as part Metropolitan Statistical Area (MSA) or commenter was concerned the term
of the alien labor certification process. Primary Metropolitan Statistical Area ‘‘worker’’ in subparagraph (1) could be
The commenter also recommended: (1) (PMSA), any place within the MSA or construed to include independent
Using the SWA’s résumé unit staff to PMSA is deemed to be within normal contractors, and wanted to amend the
process these Job Bank orders after the commuting distance of the place of regulation to make it unambiguous that
current backlog decreases, and (2)
intended employment; however, all the job opening must be for an employee
tracking labor certification applications
locations within a Consolidated position, not an independent contractor
to monitor employers’ recruiting efforts.
Under the new regulation, job orders Metropolitan Statistical Area (CMSA) position. Specifically, the commenter
submitted under § 656.17(e) will be will not be deemed automatically to be proposed to either amend the regulation
indistinguishable from any other job within normal commuting distance. The to add the phrase ‘‘that has an
orders placed by employers. Referrals borders of MSAs and PMSAs are not employer-employee relationship with
will be handled the same way they are controlling in identifying the normal its workers’’ or change ‘‘a full-time
handled for other job orders, which may commuting area; a location outside of an worker’’ to ‘‘a full-time employee’’ or
vary from state to state. Under MSA or PMSA (or a CMSA) may be change the definition of ‘‘job
supervised recruitment, applicants will within normal commuting distance of a opportunity’’ to read ‘‘a job opening for
be directed to respond to the CO. Issues location that is inside the MSA or an employee’’ instead of ‘‘a job opening
regarding layoffs are addressed in the PMSA (or CMSA). We acknowledge that for employment.’’
preamble discussion of § 656.17(k). the terminology CMSAs and PMSAs are In this final rule, the definition of
The general instructions in this final being replaced by the Office of employer has been clarified by
rule, at 20 CFR 656.10(c) provide the Management and Budget (OMB). removing from the first sentence the
employer must certify the conditions of However, we will continue to recognize phrase ‘‘full-time worker’’ and adding
employment listed on the Application use of these area concepts as well as the phrase ‘‘full-time employee’’ in lieu
for Permanent Employment Certification their replacements. thereof. Further, a sentence has been
(Form ETA 9089). These attestations One commenter touched on the added to the definition to underline that
include certifying the job opportunity definition of area of intended a certification can not be granted for an
does not involve unlawful employment in its discussion of Application for Permanent Employment
discrimination and the terms, alternate published surveys used to Certification filed on behalf of an
conditions, and occupational document the prevailing wage (see our independent contractor.
environment are not contrary to Federal, discussion of prevailing wages below). A SWA recommended including
state, or local law. Furthermore, The commenter noted that some surveys holders of temporary visa types (i.e., B—
although not specified in this final rule, list data for only the CMSA or for a visitor’s visa) on the list of persons who
the SWA can not accept job orders that region of a state. While recognizing are temporarily in the United States
are not acceptable under the these surveys may include employers and, therefore, are not included in the
Employment Service Regulations in 20 from outside the normal commuting definition of employers for the purpose
CFR parts 651 through 658. distance, the commenter felt it was of obtaining a labor certification.
We have not determined whether any highly unlikely that prevailing wage We agree that the list should include
additional funds will be provided for rates are that sensitive to commuting persons on a B visa. Therefore, this final
any increased expenses resulting from distance. rule adds visitors for business or
employers submitting job orders under We reject the proposal to allow data pleasure to the list of persons who are
the recruitment provisions at 20 CFR from broader geographical areas because temporarily in the United States and
656.17(e) of this final rule. It should be our program experience indicates that who can not be employers for the

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77332 Federal Register / Vol. 69, No. 247 / Monday, December 27, 2004 / Rules and Regulations

purpose of obtaining a labor for job requirements that exceed the forms were designed to be machine
certification. SVP level assigned to the occupation. readable and we anticipated most
See our discussion of business necessity employers would submit them by
3. References to the Immigration and
below. Revision of the SVP is beyond facsimile transmission to an ETA
Naturalization Service
the scope of this rulemaking. application processing center.
This final rule reflects the creation of ETA plans to utilize the guidance
the Department of Homeland Security provided in the administrative directive 1. Electronic Filing
and the attendant government Field Memorandum No. 48–94, issued Many commenters indicated the
reorganization. All references in the May 16, 1994, Subject: Policy Guidance forms published with the NPRM were
proposed rule to the Immigration and on Labor Certification Issues (FM). In not ‘‘user friendly’’ because they were
Naturalization Service (INS), in the summary, the FM provided that a designed to be machine readable to
Department of Justice, have been general associate’s degree is equivalent facilitate submission by facsimile
changed to either Department of to 0 years SVP, a specific associate’s transmission. Many commenters
Homeland Security (DHS) or the United degree is equivalent to 2 years; a indicated because of problems during
States Citizenship and Immigration bachelor’s degree is equivalent to 2 the implementation of the LCA ‘‘Fax-
Services (USCIS), in the Department of years; a master’s degree is equivalent to back’’ system for H–1B applications, we
Homeland Security. 4 (2 + 2) years; and, a doctorate is 7 (2 should not require submission of the
+ 2 + 3) years. form by facsimile transmission. In view
4. Definition of the Standard Vocational
In administering this final rule, the of the success of electronic filing of H–
Preparation and Educational
Dictionary of Occupational Titles (DOT) 1B applications, commenters
will no longer be consulted to determine recommended we use a system based on
The proposed rule defined the term whether the training and experience electronic filing in the redesigned
‘‘Standard Vocational Preparation requirements are normal; O*NET will be permanent labor certification process.
(SVP)’’ as the amount of lapsed time used instead. It should be noted, We have decided to implement the
required by a typical worker to learn the however, the job opportunity’s job redesigned labor certification process
techniques, acquire the information, and requirements, unless adequately arising using an electronic filing and
develop the facility needed for average from business necessity, must be those certification system. This system is
performance in a specific job-worker normally required for the occupation partially modeled after the system used
situation. Lapsed time is not the same and must not exceed the Specific for filing and certifying labor condition
as work time; for example, 3 months of Vocational Preparation assigned to the applications under the H–1B
lapsed time refers to 3 calendar months, occupation as shown in the O*Net Job nonimmigrant program. Employers will
not 90 work days. The definition Zones. More information about O*NET, also have the option to submit
includes a list of SVP levels and the including the O*NET job zones can be applications by mail.
corresponding amount of lapsed time found at Under the e-filing option, the
for each. Application for Permanent Employment
A university commenter noted the 5. Definition of the State Employment Certification (ETA Form 9089) must be
SVP level is for the most part unknown Security Administration completed by the user on-line. The
to most employers, and thanked DOL for One commenter noted the acronyms system will assist the employer by
including the information in the ‘‘SESA’’ and ‘‘SWA’’ are used checking for obvious errors, and will
regulations. However, the commenter interchangeably in some parts of the input the information into an ETA
felt the regulations should also include proposed rule; for example, database. This will speed the process of
the table of educational equivalencies § 655.731(a)(2)(ii)(A)(3) uses SESA. The evaluating the application, and help to
used to determine how many years of commenter recommended to avoid prevent data entry errors. ETA will
experience a given degree or course of confusion, the definition of ‘‘State accept mailed ‘‘hard copy’’ applications
study is worth. The commenter noted Employment Security Agency’’ be from those who either have no access to
the employer’s job requirements can not modified to include the phrase ‘‘now the internet or simply choose to submit
exceed the SVP level assigned to the job, known as State Workforce Agency’’ a form completed by hand. Submission
and complained the SVP values do not before the acronym SWA. As if to of applications by facsimile
adequately reflect the actual amount of underscore the confusion, a second transmission will not be accepted,
experience and education required for commenter thought the use of SWA in because our experience indicates
specific positions. Citing full professors the definition was a typographical error. facsimile submissions can not be relied
as an example, the commenter noted the We are amending only one section in on for consistent, error-free receipt and
assigned SVP level is 8, which means part 655 subpart H of the Code of return of applications. We have
the employer may require between 4 to Federal Regulations. We use SESA in determined that average processing time
10 years of combined education and § 655.731 to be consistent with part 655 will be considerably shortened if we
experience; however, universities rarely subpart H (dealing with H–1B and H– limit submission of applications to
hire anyone who has a Ph.D. (equivalent 1B1 applications), which references the electronic filing or by mail.
to 7 years of experience) and only 3 SESA. However, in Part 656, we use Applications submitted by mail will not
years of experience. A second SWA throughout. We have modified the be processed as timely as those filed
commenter simply asked that this final heading of the definition in § 656.3 to electronically.
rule clarify the O*NET job zones that read ‘‘State Workforce Agency (SWA), The comments pertaining to user
are referenced in the preamble to the formerly known as the State friendliness were considered in
proposed rule at 67 FR at 30472. Employment Security Agency (SESA).’’ designing the electronic filing system
With respect to the commenter’s and consolidating the Application for
concern that the proposed rule does not D. Electronic Filing of Applications Permanent Employment Certification
allow an employer to use job In the Notice of Proposed Rulemaking and Prevailing Wage Determination
requirements that exceed the SVP level (NPRM), we proposed that the employer Request (PWDR) form proposed in the
assigned to the occupation, this final would submit two forms to an ETA NPRM into a single application form
rule reinstates a business necessity test application processing center. These (see discussion below). We believe the

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Federal Register / Vol. 69, No. 247 / Monday, December 27, 2004 / Rules and Regulations 77333

consolidated form addresses virtually to support the PWDR, several years • We addressed the comments
all of the issues regarding the lack of would elapse before such systems regarding the need to specify technical
‘‘user friendliness’’ of the proposed would be operational in all of the degrees by adding a blank space
forms. For example, as suggested by SWAs. identified as ‘‘Other.’’ This change
commenters, the items formerly on the Accordingly, employers will continue allows the degree to be filled in by the
PWDR, such as the job description and the practice of requesting PWD from the employer. The number of technical
requirements and prevailing wage SWAs on the various forms developed degrees that commenters wished to have
determination, are now on the for this purpose by the SWA. identified was too large to incorporate
application form. as a checklist on the application form.
Employers will, as discussed below in 3. Multiple Beneficiaries • Change Wage Offer Information (see
the section on prevailing wages, request One commenter suggested DOL allow the ETA Form 9089, section G) to read:
a PWD using the form required by the a single application to be used to Offered Wage Range, From: ll To:
state in which the job is being offered. support multiple vacancies/ ll. Several commenters indicated the
Information from the state’s prevailing beneficiaries. Multiple beneficiary form should ask for a wage range
wage determination request form, such applications are discussed under the instead of a specific wage rate. We have
as the prevailing wage, occupational basic process below. made this change to clarify that
code, occupational title, state employers can offer a wage range as
determination number, and the date the 4. Assistance in Completing the well as a specific rate as long as the
determination was made, will be Application Form bottom of the wage range (reflected in
included on the application form. The Several commenters suggested DOL the ‘‘From’’ box) is not below the
employer will be expected to retain the provide assistance in completing the prevailing wage.
state prevailing wage determination application form. Among the • One commenter requested there be
form to furnish to the CO if requested suggestions were the creation of a toll- a box on the application form allowing
to do so in the event of an audit or free number, an instruction handbook, the employer to go directly to
otherwise. and detailed instructions on the supervised recruitment, rather than
internet. We hope to make all of these conduct pre-filing recruitment. We have
2. Elimination of the Prevailing Wage
methods available, although some may decided not to provide this option to
Determination Request Form (ETA
not be available upon initial employers. The supervised recruitment
implementation of the new system. process is lengthy, and is one of the
Under the current permanent labor reasons the current system is severely
certification program, requests for PWD 5. Recommended Changes to the backlogged. Supervised recruitment will
are made to the SWAs on the various Application Form be conducted only if ordered by the CO.
forms the SWAs have developed for
employers to use in submitting such Commenters provided many specific E. Schedule A
requests. The NPRM sought to suggestions for both the application
The proposed rule did not change the
standardize the process whereby form and the instructions. Those
general requirements for Schedule A
employers make requests to the SWAs suggestions have been reviewed and
pre-certification. It proposed a technical
for PWD by proposing all requests be many have been incorporated into the
change for the description of Group I
submitted on the PWDR. However, after revised ETA Form 9089 and
professional nurses, specifying that only
reviewing our experience under the H– instructions, which have been
a permanent, full and unrestricted state
1B program with the FAX-based filing submitted to the OMB for approval and
license from the state of intended
system and the comments received on follow the final rule. The changes most
employment may be used as an
this issue we have decided to often requested and our responses are
alternative to passage of the
implement electronic filing by the use of provided below.
Commission on Graduates of Foreign
a consolidated form. The consolidated • Include on the first page a box for Nursing Schools examination (CGFNS).
form includes most of the items the employer to indicate whether the It also proposed moving aliens of
proposed for the Application for request is for a Schedule A occupation, exceptional ability in the performing
Permanent Employment Certification with instructions reminding the user arts (included under § 656.21a(a)(1)(iv)
and the information that would have that, for Schedule A occupations, the of the current regulations) to Group II of
been provided by the PWDR. This recruitment sections of the form need Schedule A.
includes the information that the not be completed and the form should We received several comments about
employer would have provided on the be submitted directly to USCIS for the requirements for pre-certification for
PWDR, such as the job description and processing. We have modified the form professional nurses. A number of
job requirements, as well as the to include these suggestions. commenters proposed additional
information that the SWAs would have • Clarify on the form that the ‘‘special occupations and classes of aliens to be
entered on the PWDR, such as the requirement process’’ includes the added to Schedule A. No commenters
prevailing wage determination and the optional process for college and objected to moving aliens with
SWA tracking number. university teachers. We removed the exceptional ability in the performing
Another reason why we have chosen ‘‘special requirement process’’ item and, arts to Group II of Schedule A.
not to require one standardized form be under the recruitment section, included
used by employers to submit requests the optional process for college and 1. Nurses
for prevailing wage determinations to university teachers. As proposed, an employer seeking
the SWAs is because such a requirement • Change the term ‘‘Education or permanent labor certification for a
would, in effect, impose an unfunded Training: Highest Level Required’’ (see professional nurse must file, as part of
mandate on the SWAs to develop the proposed ETA Form 9088, Item its application with the DHS,
computer systems to support the section H) to ‘‘Education and Training: documentation the alien has passed the
proposed PWDR. It also became evident Minimum Level Required.’’ We have CGFNS examination. Alternatively, the
that, assuming funding were available to modified the new form 9089 to include employer may document the alien has a
develop the computer systems necessary this suggestion. permanent, full and unrestricted license

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77334 Federal Register / Vol. 69, No. 247 / Monday, December 27, 2004 / Rules and Regulations

to practice nursing in the state of instead required applicants to pass a test eligibility for the RN license, pending
intended employment. that evaluated both English proficiency receipt of a Social Security card. A
A number of commenters suggested and nursing skills. As such, we commenter noted Alaska and a few
changes in the proposed rule that would understood passage of the CGFNS other states already follow this practice.
allow a greater number of nurses to nursing examination to include both Other commenters identified
receive certification under Schedule A. factors. We believe proficiency in additional state-imposed obstacles to
Several commenters addressed the English is essential to perform the job using the permanent license alternative,
requirement that foreign-trained nurses duties of a professional nurse in the including refusal to issue a permanent
must demonstrate passage of the CGFNS United States, due to the need to license until the foreign-trained nurse
examination. One commenter supported communicate with doctors and patients. has arrived in the United States, or
the proposed rule’s requirements for The current CGFNS Certificate is requirements for in-state residence, a
handling Schedule A applications, analogous to passage of the old CGFNS valid visa, and fingerprint screening.
including the option of documenting nursing exam. Allowing a foreign-trained nurse to
that the alien holds a permanent license Several commenters supported adding satisfy the permanent license
as an alternative to passage of the a provision allowing alien nurses who requirement by documenting success on
examination. pass the National Council Licensure the NCLEX–RN would also alleviate
Three commenters mistakenly Examination for Registered Nurses these barriers, according to the
thought that we were removing passage (NCLEX–RN), administered by the commenters.
of the CGFNS examination as a means National Council of State Boards of Two commenters raised a related
of certification. This appears to have Nursing (NCSBN), to qualify for issue about nurses who hold a
been a misunderstanding of the Schedule A. The commenters contended permanent license in one state and are
preamble to the proposed rule, which that because every state requires passage the beneficiary of a petition for
stated: ‘‘only a permanent license can be of the NCLEX–RN before issuing a employment in another state. In this
used to satisfy the alternative permanent license, proof of passing situation, the alien nurse would not
requirement to passing the [CGFNS] should be another means to qualify have to pass an examination in the
exam’’ (see 67 FR at 30469). The under § 656.5(a)(2). Although the
second state, but would initially be
proposed rule did not delete passage of availability of the examination only in
given a temporary license in order to
the CGFNS examination as the U.S. and its territories had been a
documentation of eligibility as a practice. The commenters maintained
burden for foreign-trained applicants in
Schedule A professional nurse. The only this type of temporary license should be
the past, the commenters noted that the
change proposed was to specify that the distinguished from those situations in
NCLEX–RN is being given in more
full and unrestricted state license must which the alien does not have a
locations abroad and some organizations
be a permanent license. This revision permanent license in any state. Because
bring foreign nurses to the U.S. to take
conforms the general descriptions of it believed that a temporary license in
the examination.
aliens seeking Schedule A certification Our intent in promulgating the this situation is the functional
as professional nurses at § 656.5(a)(2) to existing and proposed Schedule A equivalent of a permanent license, AILA
the procedures regarding documentary procedures for professional nurses was suggested DOL add the following
evidence to support a Schedule A to put an end to the pre-1981 practice additional alternative to § 656.15(c)(2),
certification at § 656.15(c)(2). whereby some nurses entered the to include alien nurses ‘‘who hold a
One commenter requested United States on temporary licenses and temporary license in the state of
clarification as to whether the rule permits, but failed to pass state intended employment and require no
requires a CGFNS Certificate or simply examinations for a permanent license. further examination to attain permanent
evidence of passing the CGFNS nursing We have determined that passage of licensure in that state.’’
skills examination. The commenter NCLEX–RN examination is consistent We have decided not to recognize
noted that successfully passing the with and furthers the policy rationale temporary licensure in the state of
CGFNS nursing skills examination for allowing CGFNS Certification as an intended employment. As we have
results in issuance of a ‘‘pass’’ letter. alternative to holding a permanent, full broadened the rule to include passage of
The CGFNS Certificate is only issued if and unrestricted license to practice the NCLEX–RN as qualifying for
the individual has passed the nursing nursing in the state of intended Schedule A, we believe virtually all
skills examination, demonstrated employment. This final rule includes a alien nurses who have temporary
English language proficiency (by provision in § 656.15 allowing licensure would be covered under this
passing the Test of English as a Foreign certification by demonstrating passage rule. This avoids any need to
Language or a similar exam) and CGFNS of the NCLEX–RN. distinguish between different types of
has made a favorable evaluation of the A few commenters noted procedural temporary licenses. In addition, the
individual’s nursing credentials. This problems posed by the requirement of a NCSBN indicates several states have
and another commenter requested the permanent state license in the state of passed legislation authorizing Nurse
regulation be clarified to specify that intended employment. Commenters Licensure Compacts, which allow a
passage of the CGFNS nursing asserted many states will not issue a nurse licensed in his or her state of
examination, and not a CGFNS permanent license until the applicant residence to practice nursing in another
Certificate, is adequate documentation has a Social Security number, even state. It is anticipated that most states
to satisfy § 656.15(c)(2). when the nurse has passed the NCLEX– will pass legislation to authorize the
After reviewing the comments, and RN. Because the NCLEX–RN is the final Nurse Licensure Compact, and adopt
information from CGFNS, we have hurdle to the practice of nursing in a the mutual-recognition model of nurse
modified the proposed rule to require in state, the commenters urged DOL to licensure. In the event of such
this final rule a CGFNS Certificate, not allow a foreign nurse to satisfy the legislation being passed, concerns raised
merely proof that the alien has passed permanent license requirement by by several commenters where an alien
the CGFNS nursing skills examination. having a letter from a state nursing nurse is licensed in one state, but is
When the current regulation was drafted board attesting to the nurse having sponsored to practice in another state,
CGFNS did not issue a Certificate, but passed the NCLEX–RN and having full would be resolved.

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2. Performing Artists to perform rare or unusual combinations worker of exceptional ability, and
We received several comments of duties; and alien workers who are so permit exceptional ability aliens with a
supporting the proposal to add inseparable from the sponsoring reasonable plan for job creation to self-
performing artists of exceptional ability employer the employer would be sponsor under Schedule A. AILA further
to Group II of Schedule A. No unlikely to continue in operations suggested we add persons with
commenters opposed this proposal. without the alien. The commenter urged exceptional ability in business to Group
Accordingly, this final rule provides expanded use of Schedule A to cover II of Schedule A because business is a
that performing artists of exceptional these classes of aliens who would subset of science.
otherwise be denied access to Whether or not a given application or
ability are included in Group II of
permanent residency. alien beneficiary qualifies for Schedule
Schedule A.
All of these comments fail to address A pre-certification is determined by
3. Expansion of Schedule A the core premise for Schedule A; DHS. We believe the criteria for aliens
Several commenters recommended namely, pre-certification of occupations of exceptional ability in the sciences or
expansion of Schedule A to pre-certify for which there are few qualified, arts at § 656.15(d)(1) are clear and do
willing, and available U.S. workers. not need to be revised. Except for the
certain occupations or classes of aliens.
A high-tech company recommended Most of the categories suggested by recommendation we add a criterion for
commenters, such as key employees, other comparable evidence of
expanding Schedule A occupations to
employees with special or unique skills, exceptional ability, the commenter
provide for an ‘‘earned’’ labor
and small business investors are not made no specific suggestions as to how
certification for otherwise excluded
occupational categories; instead, as these criteria should be revised. We do
foreign nationals when beneficial to the
admitted by most of the commenters, not adjudicate Schedule A applications,
U.S. economy. This category would
they are categories of foreign workers. In and DHS rarely contacts our office for
include employees who gained
light of our revisions to § 656.17(h) and advisory opinions on these cases. If, as
irreplaceable experience on the job,
(i) regarding job requirements and actual AILA claims, DHS has failed to adhere
performed unusual combinations of
minimum requirements, some foreign to the appropriate regulatory standards
duties or key duties; or who worked for
workers with special or unique skills in reviewing applications for aliens of
the employer or its subsidiaries for a might be eligible for labor certification exceptional ability, recommendations
specified period of time, either within under the basic process. Regarding alien for procedural changes should be made
or outside the U.S.; and employees workers who are so inseparable from the to DHS, not to DOL.
whose efforts had created jobs for U.S. sponsoring employer that the employer We have determined that we will not
workers. The commenter claimed would be unlikely to continue in add any new occupations or
including these categories under operation without the alien, we have occupational categories to Schedule A
Schedule A would not interfere with long held the position that if a job in this final rule not included in the
streamlining and would protect U.S. opportunity is not open to U.S. workers, Notice of Proposed Rulemaking. To add
workers, relieve DOL of its adjudication it is not eligible for labor certification. an occupation to Schedule A, we believe
responsibilities because its burden In addition to the above-cited it is advisable to issue a proposed rule
would be shifted to USCIS Service categories, AILA proposed that and provide an opportunity for public
Centers, and would afford an outlet to Schedule A be revised to clarify the comment.
a deserving class that would otherwise distinction between aliens of Four university commenters urged
be denied access to permanent extraordinary ability, covered by 8 DOL to include college and university
residency under the proposed rule. U.S.C. 1153(b)(1), and aliens of teachers under Schedule A. The
Similarly, AILA recommended exceptional ability, covered by Schedule commenters claimed because virtually
expanding Schedule A occupations to A, Group II. AILA noted when DOL all such cases are certified under the
accommodate ‘‘special merit’’ foreign published the regulations implementing current special handling requirements
nationals, including company founders the Immigration Act of 1990 (IMMACT of § 656.21(a), these occupations should
and managers; key employees in 90), we recognized some aliens may be moved to Schedule A. The
managerial, executive, or essential qualify under Schedule A, Group II, as commenters asserted this would allow
positions in affiliated, predecessor, or aliens of exceptional ability but may not DOL to focus its resources on other, less
successor-in-interest companies; be able to qualify as an alien of meritorious cases.
employees who have been employed by extraordinary ability. See 56 FR at We have no evidence of a lack of
a U.S. employer for a certain number of 54923 (October 23, 1991). AILA claimed qualified, willing, and available U.S.
years and gained irreplaceable training DHS has continued to apply DOL’s pre- workers in the occupation of college and
and experience in distinct positions; IMMACT 90 definition of exceptional university teacher. Absent evidence of a
and employees central to the existence ability, and has denied eligibility for lack of available workers, we see no
of the employer. Schedule A, Group II, unless the higher compelling reason why this
Another commenter expressed post-IMMACT 90 standard of occupational category should be added
concern that the proposed rule would extraordinary ability can be satisfied. to Schedule A. If a college or university
adversely affect small businesses by AILA recommended we revise the teacher can be considered an alien of
declaring a large number of deserving definition of aliens of exceptional exceptional ability in the sciences or
aliens to be ineligible for labor ability in a manner that makes material arts, such an individual may be eligible
certification. The commenter pointed to distinctions between exceptional and for Schedule A pre-certification under
a list of such deserving but ineligible extraordinary ability. AILA suggested § 656.5(b)(1). Further, we note special
aliens: small business investors; we develop a checklist of factors to recruitment procedures for college and
employees in key positions who establish exceptional ability analogous university teachers are available under
previously worked for affiliated, to the DHS criteria for aliens of this final rule.
predecessor, or successor entities; extraordinary ability. AILA also AILA also suggested DOL create a
employees who gained essential suggested we allow the submission of provision for Schedule A that would
experience with the sponsoring other ‘‘comparable evidence’’ to incorporate a flexible, just-in-time
employer; employees who are required establish the alien’s eligibility as a system for occupation shortages. As

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proposed by AILA, DOL would expand prevailing wage. Third, the fact DHS aliens to pay the costs of the labor
the use of technology already inherent asks for documentation describing the certification process and provide for
in the new system to collect real-world position and offered wage has nothing penalties for imposing these costs on the
data on job needs in particular job to do with whether the employer is alien beneficiary.
markets. DOL could then allow for actually offering the prevailing wage. While the suggestion to have the
flexible opening and closing of a special employer provide documentation of
Schedule A group in response to acute, 5. Technical Correction
financial involvement may be of some
localized labor shortages. We have corrected the reference at the merit, it was not included in the NPRM,
As with the other proposals to expand end of the first paragraph in § 656.5, and is a major departure from past
the categories of workers covered under Schedule A from § 656.19 to § 656.15. practice; consequently, we believe we
Schedule A, the just-in-time system would have to issue a new proposed
F. Elimination of Schedule B
proposed by AILA would require rule before we could promulgate a rule
additional rule making. We are also We proposed to eliminate Schedule B requiring such documentation. We
unsure whether data would be available because our program experience believe it is more important to issue a
to successfully implement such a indicated it has not contributed any final rule at this time to achieve the
system. While we anticipate the measurable protection to U.S. workers. benefits under this final rule than to
automated system will capture data Once an employer files a Schedule B substantially delay realization of such
regarding occupations being sponsored waiver, the application is processed the benefits that would result by the
for labor certification, it is not clear all same as any other application processed issuance of another NPRM.
occupations being sponsored for labor under the basic process. Whether or not It should be noted, however, evidence
certification are experiencing a lack of an application for a Schedule B that the employer, agent, or attorney
available workers. occupation is certified is dependent required the alien to pay costs could be
upon the results of the labor market test used under the regulation at
4. Prevailing Wage Determination
detailed in § 656.21 of the current § 656.10(c)(8) to determine whether the
regulations. job has been and clearly is open to U.S.
Two commenters objected to the A few commenters addressed the workers.
rule’s requirement that an employer proposed change. Two commenters
must obtain a prevailing wage supported the elimination of Schedule 2. Representation
determination for Schedule A B. Both of these commenters pointed a. Attorneys and Agents
occupations. One commenter asserted out Schedule B occupations require
the current regulations do not require a little or no experience, and employees The NPRM did not propose any
prevailing wage determination for can be trained quickly to perform them. modifications to the provision in the
professional nurses, and this practice Two commenters opposed the current regulation at 20 CFR
should continue. Similarly, AILA elimination of Schedule B and suggested 656.20(b)(1) (found in this final rule at
reasoned the wage determination eliminating the Schedule B waiver 656.10) that allows employers and
requirement was unwarranted and instead. aliens to be represented by agents or
would impose an unnecessary burden We can not maintain Schedule B attorneys. However, two attorneys urged
on the employer and the SWAs. AILA without a provision for a waiver. we eliminate representation of
also contended DOL has already Schedule B is a list of occupations in employers and/or aliens by agents as
determined that hiring of foreign which there generally are sufficient U.S. provided in the current regulation. The
workers for Schedule A occupations workers who are able, willing, qualified commenters advanced three reasons for
will not depress wages for U.S. workers. and available. It is not a blanket their recommendations. They
As an alternative, AILA suggested DOL determination there are sufficient maintained that:
amend the application form to include workers for the occupations on • Allowing representation by agents
an attestation that the employer is filing Schedule B in every area of intended was contrary to statutes in all 50 states
a Schedule A application, and then add employment in which employers may prohibiting the unauthorized practice of
language exempting the employer from wish to employ foreign workers. law;
the requirement of obtaining a SWA- Therefore, there must be a waiver for • Unlicensed agents are the ones most
issued prevailing wage. According to employers located in areas in which the prone to perpetuate fraud on the
AILA, DHS requires an employer offer general determination may not apply. Department of Labor and clutter the
letter or similar documentation Accordingly, this final rule does not labor certification processing system
describing the position and offered contain a provision for Schedule B with frivolous or poorly prepared cases;
wage. occupations. and
This final rule retains the prevailing • DOL should issue a regulation
wage requirement for a number of G. General Instructions similar to the one issued by DHS at 8
reasons. First, the employer has always General instructions for filing CFR 292 that governs the representation
been required to certify that it is offering applications, representation, of employers and aliens before the DHS.
at least the prevailing wage for the attestations, notice, and submission of Amending the regulations at 20 CFR
occupation. Second, the current as well evidence are provided in § 656.10. 656.10(b) as proposed by the
as the proposed regulation require an commenters would be a major departure
Immigration Officer to determine 1. Financial Involvement from our longstanding practice allowing
whether the employer and alien have One commenter noted alien representation by attorneys and agents,
complied with § 656.10, General beneficiaries, not employers, drive the and may have serious consequences for
Instructions, including whether the labor certification process. The those individuals who are now allowed
employer has attested to the conditions commenter suggested this final rule to represent employers and/or aliens in
listed on the Application for Permanent require documentation of the the capacity of an agent. We believe it
Employment Certification form (ETA employer’s financial involvement, or, would be prudent before making such a
9089), which includes a requirement the alternatively, prohibit employers, major change in our longstanding
employer attest it is offering at least the agents, or attorneys from requiring practice and procedures to issue another

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proposed rule and consider the We have been informed that DHS is commenter expressed the view the
comments we would receive on the planning to amend its regulation at 8 information in proposed § 656.10(d)(3)
proposal. CFR 204.5(g), which currently focuses informing employees how they can
on the ability to pay the proffered wage furnish documentary evidence bearing
b. Notice of Entry of Appearance (Form
in the course of processing the on the application to the CO is not in
employment-based immigrant petition, accordance with normal recruitment
Another commenter recommended to require evidence focusing on the bona procedures.
employers as well as attorneys be fides of the employer. AILA stated employers do not
required to sign the Notice of Entry of DHS does not have a regulation that normally post via in-house media for
Appearance (Form G–28). The focuses specifically on the employer’s certain positions, such as senior or
commenter maintained not requiring the ability to place the alien on the payroll executive positions, because of
employer to sign the Form G–28 on or before the date of the alien’s confidentiality concerns. AILA
encourages fraudulent practices, as proposed entrance into the United suggested DOL amend the rule to
employers at times have no knowledge States. Ability to pay and the ability to provide that an employer post internally
of the labor certification application or place the alien on the payroll are not through any and all media normally
of the attorney purporting to represent necessarily the same. An employer can used for other similar positions. A large
them. be fiscally solvent but it may not be employer asserted publishing an
The labor certification process realistic, for example, to expect the employment posting in any and all in-
provided by this final rule does not plant or restaurant that is in the house media is extraordinarily broad
require a Form G–28 if the employer is planning stage or under construction at and could be construed to include
represented by an attorney. Requiring a the time the application is filed to be training films, publicity postings, and a
Form G–28 would be incompatible with completed when the alien or U.S. myriad of unrelated and unhelpful
the electronic filing system provided for worker is available to be employed in venues. This employer suggested the
in this final rule. Elimination of the G– the certified job opportunity. requirement in § 656.10(d)(ii) of the
28 will not inhibit or impede efforts to After reviewing the comments and proposed rule be changed to read ‘‘(i)n
combat fraud. Under this final rule, considering DHS’ planned revisions to addition, the employer must publish the
employers will be required to sign in its regulation, we have concluded that, posting in accordance with the normal
section N of the Application for in an attestation-based program where procedures used for the recruitment of
Permanent Employment Certification an in the majority of cases the employer’s other positions in the employee’s
employer declaration which, among supporting documentation will not be organization,’’ thereby assuring that
other things, states the employer has available to the reviewer, it is regular and accepted industry practices
designated the agent or attorney appropriate to require the employer to are followed in the labor certification
identified in section E of the application attest to its ability to pay the alien and process.
form to represent it, and by virtue of its to place the alien on the payroll. It Three universities were of the view
signature, takes full responsibility for should also be noted the employer’s the expanded posting requirements
the accuracy of any representations would not yield many applicants for
ability to place the alien on the payroll
made by the employer’s attorney or highly specialized research and faculty
is not addressed by DHS regulations.
agent. positions. One university indicated it
Similarly, although rejection of U.S.
posted jobs in on-line and in-house
c. Retention of Documents by Attorney workers for lawful, job-related reasons is
publications normally read by current or
dealt with in the regulation section on
One attorney believed some potential employees. However, it did
the recruitment report, and although the
immigration attorneys admonish their not publish faculty and academic
permanent full-time nature of the job
employer-clients to retain the research positions at those locations, as
opportunity, and required
enumerated recruitment documents for it did not see any positive result from
documentation is included in the
their records but not supply the doing so.
definition of ‘‘employment,’’ we have A SWA supported expanding the
documents to the attorney so the
concluded it would be beneficial in the posting requirement to include any and
attorney can maintain plausible
context of an attestation-based system to all in-house media. The SWA noted its
deniability for any document violation.
add certifications addressing these experience indicated employment
The commenter recommended the
issues. We have revised the final rule postings are poorly presented and often
attorney of record should be required to
accordingly. virtually invisible on employer bulletin
maintain copies of recruitment
documents so he or she may be held 4. Notice boards.
accountable for the content of the Another SWA noted the current
a. Expansion of Notice Requirement posting requirement has not provided
application form. We believe it is
sufficient under this final rule that the Several commenters addressed the any applicants for job openings, and
employer will be required to furnish expansion of the posting requirement to noted the expanded posting requirement
recruitment documentation in the event require, in addition to posting a notice does not provide any incentive for
of an audit or as otherwise required by of the filing of the ETA Form 9089 in current employees to refer friends or
a CO. conspicuous places at the employer’s relatives to the employer. The SWA
place of employment, the employer recommended that employers should be
3. Attestations publish the posting in any and all in- encouraged to include a finder’s or
Two commenters challenged the house media, whether electronic or referral fee in the posted notice.
proposal in the NPRM to remove the printed, in accordance with the normal With respect to the comment
regulatory requirements that the procedures generally used in recruiting concerning the requirements at
employer attest to the ability to pay the for other positions in the employer’s § 656.10(d)(3) in the proposed and final
wage or salary offered to the alien organization. rule concerning the furnishing of
worker and to place the alien on the Several commenters expressed documentary evidence bearing on the
payroll on or before the date of the concerns about the expansion of the application, § 656.10(d)(3) was drafted
alien’s entrance into the United States. posting requirement in the NPRM. One to implement the statutory requirement

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provided by Section 122(b) of IMMACT requirement is not designed to be a maintained an employer should be able
90 that provided for the current notice recruitment vehicle. We have, however, to use a salary range in the posting as
requirement and provided, in relevant included referral incentives as one of long as the bottom of the range meets
part, ‘‘any person may submit the options employers may use in the prevailing wage.
documentary evidence bearing on the recruiting for professional workers in AILA also said, after analyzing the
application for certification (such as § 656.17(e)(1)(ii) of this final rule. interplay between §§ 656.21(b)(6),
information on available workers, 656.21(g)(6), and 656.21(g)(8) under the
b. Notice for Schedule A Applications current regulations, they construed the
information on wages and working
conditions, and information on the AILA questioned our basis for ‘‘no less favorable than offered the
employer’s failure to meet the terms and requiring employers to comply with the alien’’ language in § 656.21(g)(8) to
conditions with respect to the notice requirement for applications filed require the employer to advertise a wage
employment of alien workers and co- with DHS on behalf of Schedule A offer no less than the alien’s wage when
workers).’’ It should also be noted the occupations. AILA pointed out that initially hired; assuming, of course, the
provision at § 656.10(d)(3) is similar to Schedule A occupations are by wage offer also meets or exceeds the
the provision in the current regulation definition those for which DOL has prevailing wage.
at 20 CFR 656.20(g)(3). already determined that there are not Employers can use a wage range in
With respect to comments regarding sufficient U.S. workers who are able, the required notice. It is longstanding
the occupations subject to the posting willing, qualified, and available for the DOL policy that the employer may offer
requirement and the requirement the occupations listed, and the wages and a wage range as long as the bottom of
employer post internally through any working conditions of U.S. workers the range is no less than the prevailing
and all media, it should be understood, similarly employed will not be rate. See page 114 of Technical
as indicated above, the notice adversely affected by the employment of Assistance Guide No. 656 Labor
requirement in the regulations has been aliens. Therefore, no recruitment is Certifications (TAG). However, the
a statutory requirement since the required for Schedule A applications, prevailing wage, which provides the
passage of IMMACT 90. Section and the adjudication of such floor for the wage range, must be the
122(b)(1) of IMMACT 90 provides no applications has been placed by the prevailing wage at the time the
certification may be made unless the DOL under the jurisdiction of DHS. recruitment was conducted for the
employer-applicant, at the time of filing AILA indicated it would serve no application for which the employer is
the application, has provided notice of purpose for employers of Schedule A seeking certification, not the prevailing
the filing to the bargaining applications to provide notice, and DOL wage when the alien beneficiary was
representative or, if there is no should consider eliminating the initially hired.
bargaining representative, to employees unnecessary posting burden for The advertising requirements at
employed at the facility through posting employers. § 656.17(f) of this final rule no longer
in conspicuous places. In our view, We have concluded employers must include wage or salary information;
Congress’ primary purpose in comply with the posting requirement to however, the wage offered must be
promulgating the notice requirement file applications under Schedule A with included in the notice. The regulations
was to provide a way for interested DHS. As we point out above, the statute implement the statute, which provides
parties to submit documentary evidence provides no certification can be issued ‘‘no certification may be made unless
bearing on the application for unless the employer has provided the the applicant for certification has at the
certification rather than to provide required notice. Second, as stated time of filing the application, provided
another way to recruit for U.S. workers. previously, in our view Congress’ notice of the filing.’’ Because the ETA
See 8 U.S.C. 1182 note. primary purpose in promulgating the Form 9089 includes the offered wage,
Because the notice requirement is notice requirement was to provide a the employer must include in the notice
statutory, we do not believe that means for persons to submit the wage offered to the alien beneficiary
exceptions to the notice requirement documentary evidence bearing on the at the time the application is filed.
could be based on the occupation application. This could, for example, Alternatively, the employer may include
involved in the application. As one include documentation concerning a salary range in the notice, as long as
SWA noted, printed postings on bulletin wage or fraud issues. Requiring the bottom of the range is no less than
boards under the current regulation at employers to provide notice of their the prevailing wage rate. The wage paid
20 CFR 656.20(g) are poorly presented Schedule A applications is consistent to the alien when initially hired is
and often virtually invisible. The with the practice under the current irrelevant.
posting regulation at § 656.10(d)(1)(ii) in regulation at 20 CFR 656.20(g)(1). We
this final rule provides, in relevant part, have required employers to provide 5. Timing and Duration of the Notice
the posting must be published in any notice in connection with their A few comments addressed when
and all in-house media in accordance Schedule A applications since the notice must be provided and the
with the normal procedures used for the passage of IMMACT 90. See 56 FR at duration of the notice if it is
recruitment of other similar positions. 54924. accomplished by posting at the
For example, we would not expect a employer’s facility.
posting in a publication devoted to c. Wage Range and Inclusion of Wage in
health and safety issues if job vacancies Notice a. When the Notice Must Be Provided
were not normally included in that AILA noted the NPRM proposed that AILA indicated the requirement in the
publication. items required to be included in the NPRM that the notice must be posted
With respect to the recommendation recruitment advertisement (§ 656.17(f)), between 45 and 180 days before filing
by one SWA employee that employers including the wage offered, must also be the application was confusing in light of
should be required to include a finder’s included in the notice. AILA the recruitment provisions at § 656.17(d)
or referral fee, we believe it is maintained the salary ‘‘is often not of the NPRM, which requires
inappropriate to provide such an provided by most employers when recruitment be undertaken not less than
incentive under the posting regulations, using ‘in house media’ or is simply 30 days or more than 180 days before
because, as indicated above, the posting referred to by a grade level.’’ AILA also filing the application. AILA

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recommended the timing of the notice seeking to exercise their rights to occupation to have a formal and
be consistent with the other organize and bargain are indisputably substantial role in the process, the AFL–
‘‘advertising’’ requirements. Another harmed when employers attempt to CIO did not provide any suggestions as
commenter also recommended that pack bargaining units with foreign to what such a role would be beyond the
notices of filing be posted 30 to 180 workers during an organizing campaign. statutory notice requirement or the
days prior to filing the application. For that reason, the AFL–CIO believed suggestion that the union should be
As explained above, the notice the regulations should include a consulted to ascertain whether there
requirement is primarily a medium to requirement that DOL obtain was an organizing campaign or other
obtain documentary evidence bearing certification from the National Labor labor disturbance the employer may be
on the application. We have concluded Relations Board (NLRB) that there is no attempting to thwart by replacing U.S.
it makes little sense to require notice be labor dispute as defined in the DHS with foreign workers, which we have
provided 45 days before the application operating instructions at 287.3. The commented on above. Accordingly, this
is filed when employers have 6 months AFL–CIO noted this definition of a labor final rule makes no provision for unions
to complete the recruitment required dispute is broader than that described to have a formal role in the labor
under the regulations. Further, making under the permanent labor certification certification process other than what
the time frames consistent with the regulations. The commenter also was provided in the proposed rule.
timing requirements for conducting proposed if such a labor dispute arises
recruitment in § 656.17(e) would make 7. Inclusion of Posting Requirements in
after the labor certification is filed, the
the program easier to administer and Recruitment Advertisement
employer should be required to inform
reduce the potential for confusion and DOL. The AFL–CIO maintained DOL A SWA found the proposed
error on the part of employers filing should also find a way for a union expansion of posting provisions to be
applications for permanent alien representing workers in the same insufficient to provide workers with a
employment certification. Accordingly, occupation for which a foreign labor complaint system. The SWA maintained
this final rule provides notice should be certification application was filed to the rule needs a mechanism to balance
provided between 30 and 180 days have a formal and substantial role in the what the commenter views as employer
before filing the ETA Form 9089. process. bias in favor of foreign workers and
This final rule provides, pursuant to against U.S. worker interests. The SWA
b. Duration of the Notice recommended requiring that the
Section 122(b)(1) of IMMACT 90, and
Two commenters observed the NPRM similar to the current regulations, that wording of at least one of the mandatory
proposed the period the notice must be notice of the filing of the labor recruitment advertisements under
posted be increased from 10 consecutive certification application must be given proposed § 656.17(d) conform to the
days to 10 consecutive business days. by the employer to the bargaining language of the in-house posting,
One commenter indicated this increase representative(s) (if any) of the thereby giving U.S. workers who may be
was reasonable because it would employer’s employees in the interested in or qualified for jobs offered
maximize viewing by U.S. workers. This occupational classification for which to aliens the opportunity to submit
commenter also noted the notice certification of the job opportunity is complaints to DOL. This
requirement had been expanded to sought in the employer’s locations in recommendation could be qualified by
require posting in any and all in-house the area of intended employment. an exception for employers who can
media, whether electronic or printed, We proposed no substantive changes document programs to train and
but the proposed rule did not specify for to our current regulations regarding the develop U.S. workers for the types of
how long. The commenter suggested the showing the employer must make with positions submitted for alien labor
additional in-house media ‘‘advertising’’ respect to a labor dispute. Our program certification. On the topic of complaints,
be required for 10 days. We agree and experience has not brought to light any another SWA recommended the final
the final rule provides that notice reason why the current regulations rule enable an applicant to file a
provided by posting to the employer’s should be changed. This rule has been grievance against an employer within 30
employees at the facility or location of in effect for over 20 years and our days of an interview. This SWA further
employment must be posted for 10 operating experience with this provision suggested the employer give each
consecutive business days. Posting in has demonstrated it is adequate for the applicant a comment card for DOL’s use
any in-house media, whether electronic protection of U.S. workers. Moreover, if a complaint is filed.
or printed, should be posted for as long because our program experience points Regarding the suggestion to include
as other positions in those media are to the adequacy of the current the notice information in one of the
normally posted. regulations with respect to labor required recruitment advertisements at
disputes, we are reluctant to make any § 656.17(e), we do not believe this is
6. Notice to Certified Collective appropriate. As described above, this
changes to the labor dispute regulation
Bargaining Representative final rule implements the statutory
that may not be compatible with our
The AFL–CIO maintained when a efforts to streamline the labor notice provision consistent with
union has been certified as a collective certification process. Congress’ intent. To require employers
bargaining representative for workers With respect to having the employer to place statutory notice requirements in
employed by the employer-applicant, inform us of a labor dispute after the their recruitment advertising would be
the new regulations should require the labor certification is filed, we do not counterproductive, as it would alert
union receive notice when a labor believe such a provision will be U.S. workers to the likelihood that the
certification application is filed. necessary in the new system. In the new employer had selected an alien worker
Moreover, the union should be system, we do not contemplate in the for the advertised job opportunity.
consulted to ascertain if there was an majority of cases any significant delay Consequently, U.S. workers would
organizing campaign or other labor between the filing of a labor certification likely be reluctant to expend the time
disturbance, because the employer may and its adjudication thus notice is not and resources to apply for jobs for
be attempting to thwart union efforts by necessary. which they believe the employer has
replacing U.S. workers with foreign With respect to finding a way for the pre-selected the alien beneficiary of a
workers. The interests of workers unions representing workers in the same labor certification application.

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With respect to the SWA’s comment passes legislation implementing the fee- 3. Documentation Requirements for
suggesting we implement a grievance charging language in the President’s Aliens of Exceptional Ability
system against the employer, the Fiscal Year 2005 Budget. We received no comments objecting
commenter did not explain how such a We received a variety of comments on to the documentation requirements for
system would work or what role we the proposal to collect fees to process aliens of exceptional ability in the
would play in the process. We will applications for alien employment sciences or arts. Therefore, the
accept documentary evidence about certification. Most of the commenters requirements in the NPRM are
labor certification applications and supported fees only if they were incorporated into this final rule.
consider the evidence in deciding
reasonable, related to actual costs, and J. Labor Certification Applications for
whether or not to certify. We do not
used solely for the labor certification Sheepherders
believe any more formal process is
program. One commenter opposed any
needed. We received no comments on the
fees that would seem to impose a
8. Retention of Documents penalty on hiring aliens. At least one proposed regulations for sheepherders.
commenter supported fees as long as The only modification made to the
The Notice of Proposed Rulemaking proposed filing requirements for
did not contain any specific record services were delivered timely. Some
commenters supported fees only if they sheepherders is to require the employer
retention requirements. Record to file only one form, the ETA Form
retention requirements were implicit in could be implemented in conjunction
with electronic filing. 9089, rather than two.
the NPRM since it was stated, for
example, in the preamble that ‘‘(t)he Two commenters opposed the K. Basic Process
employer would not be required to imposition of fees. One commenter 1. Filing Applications
provide any supporting documentation objected because DOL has never
with its application but would be imposed fees in the past. Another Employers will be required to file a
required to furnish supporting commenter, who characterized DOL’s completed ETA Form 9089
documentation to support the role in the labor certification process as electronically or by mail with a
attestations and other information adversarial, felt it was inappropriate to designated ETA application processing
provided on the form if the application pay fees to a hostile agency. center. Applications filed and certified
were selected for audit.’’ See 67 FR at electronically must, upon receipt of the
This final rule does not currently labor certification, be signed
30466. In discussing the audit process it
provide for collection of fees because immediately by the employer in order to
was indicated employers would be
legislation has not been passed that be valid. Applications submitted by
expected to have assembled and have on
would allow DOL to collect fees and use mail must contain the original signature
hand all documentation necessary to
the proceeds to process applications for of the employer, alien, attorney, and/or
support their applications before they
alien labor certification. However, in the agent when they are received by the
were submitted. 67 FR at 30475.
event Congress does pass such application processing center. DHS will
Additionally, the changes to the
legislation, DOL will provide adequate not process petitions unless they are
revocation regulation discussed below
notice and reserves the right to collect supported by an original certified ETA
strengthen the need for specific record
program fees within this rule. Form 9089 that has been signed by the
retention requirements in this final rule.
As discussed below, because this final I. Labor Certification Applications for employer, alien, attorney and/or agent.
rule allows certifications to be revoked Schedule A Occupations Supporting documentation will not
if the certification was not justified, a have been filed with the application, but
time limit has not been placed on the 1. Filing Requirements the employer must provide the required
authority of the Certifying Officer to supporting documentation if its
The only modification made to the application is selected for audit or if the
revoke a labor certification. It is also our proposed filing requirements for
understanding that DHS may want to CO otherwise requests it.
Schedule A applications was to require The Department of Labor may issue or
review the employer’s supporting the employer to file only one form, the
documentation in the course of require the use of certain identifying
ETA Form 9089, rather than two. information, including user identifiers,
processing the Form I–140 petition or
for the purpose of investigating possible 2. Documentation Requirements for passwords, or personal identification
violations of the Immigration and Nurses numbers (PINS). The purpose of these
Nationality Act. On the other hand, it personal identifiers is to allow the
would not be reasonable to require As discussed above, proof of passage Department of Labor to associate a given
employers to maintain supporting of the CGFNS examination will not electronic submission with a single,
documentation indefinitely. qualify an alien for Schedule A specific individual. Personal identifiers
To resolve these competing certification under the new system; a can not be issued to a company or
considerations, in § 656.10(f), this final CGFNS Certificate will be required business. Rather, a personal identifier
rule requires employers to retain instead. However, passage of the can only be issued to a specific
supporting documentation for 5 years NCLEX–RN examination will also individual. Any personal identifiers
from the date the Application for qualify an alien for Schedule A must be used solely by the individual to
Permanent Employment Certification is certification. Accordingly, § 656.15(c) of whom they are assigned and can not be
filed with the Department. Currently, it this final rule provides that an employer used or transferred to any other
takes approximately 5 years to obtain a seeking a Schedule A labor certification individual. An individual assigned a
labor certification and an approved I– as a professional nurse must file, as part personal identifier must take all
140 petition. of its labor certification application, reasonable steps to ensure his or her
documentation the alien has a CGFNS personal identifier can not be
H. Fees Certificate, has passed the NCLEX–RN compromised. If an individual assigned
The proposed rule contains a exam, or holds a full and unrestricted a personal identifier suspects, or
provision outlining how fees would be (permanent) license to practice nursing becomes aware, that his or her personal
implemented in the event Congress in the state of intended employment. identifier has been compromised or is

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being used by someone else, then the are not accepted for processing will not The recommendation to use the date
individual must notify the Department be date-stamped to minimize the the PWDR is filed with the SWA as the
of Labor immediately of the incident administrative burden and to discourage filing date is not practical under this
and cease the electronic transmission of employers from filing incomplete final rule. As indicated above, we will
any further submissions under that applications merely to obtain a filing have only one form in the streamlined
personal identifier until such time as a date. We do not believe it is labor certification system. We have
new personal identifier is provided. unreasonable to require the employer to combined the PWDR (ETA Form 9088)
Any electronic transmissions submitted enter all required information on the with the Application for Permanent
with a personal identifier will be application form. Further, employers Employment Certification (ETA Form
presumed to be a submission by the could immediately refile any 9089). Employers will not be submitting
individual assigned that personal application that is rejected for a DOL form to the SWAs to obtain a
identifier. The Department of Labor’s processing, so any delay in obtaining a prevailing wage determination. Instead,
system will notify those making filing date will be minimal and largely employers will make a request to the
submissions of these requirements at the in the employer’s control. SWAs for a PWD, and will receive the
time of each submission. wage determination from the SWA as
(1) Possible Reinstatement of Section
The new system will limit the role of they do now. This final rule does not
the SWA in the permanent labor require a particular form for employers
certification process to providing PWDs. Section 245(i) of the INA enables to submit requests for wage
In the new system, the employer will many individuals who qualify for determinations to SWAs or for SWAs to
still be required to obtain a PWD from permanent residency to adjust their use in responding to requests for wage
the SWA, although the timing will status to permanent resident in the U.S., determinations. Employers will,
change from a post-filing action to a pre- rather than having to leave the U.S. and however, be expected to provide the
filing action. apply at a consulate. One way aliens PWD they received from the SWAs in
could qualify for eligibility under the event of an audit or other request
2. Processing Section 245(i) was to have a labor from the CO.
As explained in the section on fraud certification application filed on their Further, we do not believe it prudent
and abuse above, applications, at a behalf by April 30, 2001, which was the to depart from our longstanding practice
minimum, will be initially reviewed, on sunset date for Section 245(i). of assigning the filing date at the time
receipt, to verify the employer exists Commenters were concerned about an application is accepted. Basing the
and has employees on its payroll. possible legislation that would reinstate filing date on the date a request for a
Applications will be checked to make Section 245(i) and believed the PWD is made with the SWA may lead
sure the employer is aware of the proposed procedures for conducting to program abuses. For example, such a
application being submitted on its pre-filing recruitment would be so time change could encourage employers to
behalf. consuming that many individuals file more wage requests than needed to
would not be able to file completed obtain an earlier filing date, or
3. Filing Date and Refiling of Pending applications in time to meet a new filing encourage employers to file many
Cases to New System deadline. applications at the end of the year,
Commenters addressed the We can not base our decisions about before the upcoming year’s
conversion of pending cases to the new the design of the labor certification Occupational Employment Statistics
system. Two commenters addressed a process on the possibility of legislative (OES) wages are released. Also, due to
potential relationship between the action extending Section 245(i). local variations in the time it takes
proposed rule and Section 245(i) of the Moreover, an extension of the Section SWAs to issue wage determinations, the
INA. There were also comments on how 245(i) deadline is not relevant to the wage determination would be an
the proposed prevailing wage determination the Secretary of Labor inconsistent source of a filing date.
determination requirement could affect must make under § 212(a)(5)(A) of the
INA. b. Refiling of Pending Cases in New
the filing date. One commenter
addressed the issue of whether an (2) Prevailing Wage Determination
incomplete application should be date- Several commenters expressed
stamped and accepted for processing. concern about the proposed provisions
Sections 656.15 through 656.19 of the that would allow employers to
a. Filing Date proposed rule would require an withdraw applications for alien
One commenter recommended all employer to obtain a PWD from the employment certification filed under
applications be date-stamped, instead of SWA before filing a labor certification the current regulations and file an
only those accepted for processing. application. One commenter suggested application for the identical job
The NPRM made a distinction this could delay filing the application if opportunity under the proposed rule
between cases denied and cases not there is disagreement about the without loss of the filing date of the
accepted for processing. We have prevailing wage. The commenter original application.
decided there are no practical recommended employers be allowed to
differences in the consequences of submit the application to DOL before (1) Identical Job Opportunity
denying an application compared to receiving the PWD. Another commenter One commenter noted because of the
returning an application because it is recommended the filing date should be proposed elimination of business
unacceptable. We have abandoned the established when the PWDR (ETA Form necessity, elimination of the use of
distinction between cases denied and 9088) is filed with the SWA, rather than alternative job requirements, and
cases not accepted for processing in the when the labor certification application disallowance of experience gained with
final rule. Under this final rule, is filed with DOL. A third commenter the employer to be used as qualifying
incomplete applications will be denied noted information on the PWDR form, experience, many pending labor
and not processed. such as the job description and special certification applications would not be
In the preamble to the NPRM (see 67 requirements, also should go to the able to be refiled under the proposed
FR at 30470), we stated applications that DHS. rule with identical job qualifications

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and salary. This commenter suggested up to the point the SWA had placed a pending application under the new
broadening the definition of identical job order under § 656.21(f)(1) of the system without having to re-test the
job opportunity to include a job current regulation. market, if the applicant complied with
opportunity by the same employer (or Similarly, the final rule has been all the filing and recruiting
its successor in interest) for the same revised at § 656.17(d) to provide that an requirements under the regulations
alien in the same field of endeavor, even employer may withdraw an existing effective at the time it filed the
if the duties, salary, skill level and application, refile under this final rule application, to alleviate the backlog of
educational or experience requirements and retain the original filing date up cases. The commenters noted the
are not identical. Another commenter until the placement of a job order under backlog has prevented many
emphasized an applicant should be able § 656.21(f)(1) of the current regulations. applications that complied with existing
to amend, add, or delete information, As indicated in the preamble to the rules from being approved.
such as job duties and requirements, in proposed rule for the RIR conversion We do not believe the requirements
the new application. The commenter regulations, it would be incongruous to for refiling cases are burdensome.
claimed because the employer must permit withdrawal and retention of the Employers are not required to refile
recruit under the new regulations, the filing date from an employer who had existing cases under the new system, so
employer should be able to use the already commenced the mandated if an employer does not wish to incur
SWA’s initial review and make changes. recruitment. If an employer withdraws the expense of additional recruitment
In determining whether the job an existing application after a job order efforts, it need not do so. There is no
opportunity is ‘‘identical’’ to the job has been placed, the employer may file guarantee an employer’s prior
opportunity as described in the an application under this final rule for recruitment effort was an adequate test
employer’s application filed under the the same job opportunity; however, the of the labor market, and additional
current regulations, the employer, alien, original filing date can not be retained. recruitment would not have been
job title, job location, and job See 65 FR at 46083 and 66 FR at 40586. required under the current regulations.
description must be identical to those in A filing date on a withdrawn It would be administratively unwieldy
the original application, including any application can only be used one time to have multiple standards for reviewing
amendments made in response to an to support an Application for recruitment information, and would be
assessment notice from the SWA under Permanent Employment Certification incompatible with a streamlined system.
§ 656.21(h) of the regulation as it existed filed under this final rule. Such a We have concluded employers should
prior to the effective date of this final refiling must be made within 210 days not obtain the benefits of the new
rule. of the withdrawal; the 210-day period is system if they have not complied with
We have not broadened the definition intended to allow time for the employer all of its requirements.
of identical job opportunity as suggested to conduct the recruitment required by
(4) Transition to the New System
by commenters. As discussed below, this final rule. If the refiled application
this final rule provides for requirements is determined not to be identical to the One commenter requested guidance
based on business necessity, alternate original application in accordance with on how applications being prepared for
experience requirements, and in certain § 656.17(d), the refiled application will filing under the RIR process would be
limited circumstances, to allow be processed using the new filing date, transitioned to the new system. The
experience gained with the employer to and the original application will be commenter requested all labor
be used as qualifying experience. See treated as withdrawn. If the refiled certification applications that placed
our discussion of job requirements, application filed under this final rule is advertisements before the effective date
alternate experience requirements, and denied, the filing date on the withdrawn of the final rule be allowed to proceed
actual minimum requirements below. application can not be used on another under the standards of regulations in
application for permanent employment effect when the advertisements were
(2) Withdrawing and Refiling Cases placed, unless the employer elects to
One commenter recommended proceed under the new system. Another
employers not be allowed to withdraw (3) Test of the Labor Market commenter inquired about the transition
cases from the current system and refile Several commenters discussed process and schedule that will be
under the new system if recruitment of retesting the labor market and re- followed to implement the proposal.
U.S. workers has already begun. The recruiting for the refiled application. Specifically, the commenter requested a
commenter stated DOL should be The commenters addressed the financial target implementation date and clear
consistent with the RIR conversion burden of re-recruitment, and backlog guidance on the transition of cases to
regulations, which prohibit employers reduction. the new system. A third commenter
from converting pending applications to Three commenters emphasized noted it is unclear how cases filed under
RIR if a job order has been filed by the requiring an employer to undertake the old regulation will be transitioned.
SWA. The commenter also warned that another recruitment campaign to The commenter noted employers will be
U.S. workers who are willing, qualified, comply with the requirements of the required to obtain the Application for
and available would not be referred streamlined labor certification system is Alien Employment Certification (ETA
when the application converts to the unduly burdensome. The commenters 750), Part A from the SWA to show
new system. stated it is unfair to require employers documentary proof that the job
In establishing a limit on when a to invest more of their resources for opportunities are identical. One
pending application may be refiled in retesting the market solely for the commenter suggested, to reduce the
the streamlined system, we reviewed purpose of using the new system. AILA backlog, DOL eliminate the second
our regulation governing when cases contended employers should not be phrase of proposed § 656.17(c)(3)(i), ‘‘if
filed under the current basic process required to expend resources on the employer has complied with all of
may be converted to RIR processing. As additional recruitment unless there is a the filing and recruiting requirements of
noted by the commenter, in our final compelling Governmental interest to the current regulations.’’ Another
rule regarding conversion of pending support additional recruitment. commenter suggested when an
cases to RIR applications, we allowed Two commenters also asserted an employer converts an application to the
employers to request an RIR conversion employer should be allowed to refile a new system, the employer should

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identify whether it has conducted processing because a majority of them In addition, although RIR processing
recruitment as a part of the original would fail to meet the standards allows the employer more discretion in
application. The commenter contained in the Notice of Proposed its recruitment methods than allowed in
recommended the converted application Rulemaking. the proposed regulations, it requires a
be selected for an audit if the original AILA suggested we process hands-on, case-by-case review. This
recruitment yielded applicants. The conversion applications ahead of new type of review is incompatible with a
commenter contended DOL should not applications to avoid further delays. uniform, streamlined system. In this
lose the recruitment information in an AILA asserted many employers will not final rule, we have prescribed a
application when it converts to the new convert their cases to the new system recruitment regimen in § 656.17(e) that,
system. unless restrictions are changed or the based on our program experience, is the
AILA suggested employers not be applicants’ cases are ‘‘grandfathered.’’ most appropriate for all occupations.
required to obtain a new prevailing We will process applications,
wage, and the employer should be able including properly refiled applications, a. Job Order and Two Print
to use all supporting documentation in the order in which they were filed Advertisements
submitted with the original application. under this final rule. In addition to the more general
As of the effective date of this final comments about the recruitment
4. Pre-Filing Recruitment Requirements
rule, all applications for labor regimen, we received specific comments
certification must be filed in accordance Under the proposed rule, the
about the requirements for a job order
with this final rule. While we will employer must recruit during the 6-
and two Sunday print advertisements.
continue to process applications filed month period before filing the
With few exceptions, commenters
under the current regulations, the SWAs application. Recruitment for
focused on professional occupations
will not accept any applications filed professional occupations consists of a
and did not specifically address the
under the current regulations after the job order and two print advertisements
appropriateness of the requirements for
effective date of this final rule. Because plus three additional steps. Recruitment
nonprofessional occupations.
this final rule will not become effective for nonprofessional occupations
until 90 days after publication in the consists of a job order and two print (1) Job Order
Federal Register, we believe the 90 day advertisements. We specifically invited
comment on the advertising Relatively few commenters
delayed effective date for this final rule specifically addressed the requirement
will provide employers, including those requirements, and the different
requirements for professional and for a job order. FAIR and the AFL–CIO
employers contemplating filing RIR supported a job order for all
applications, with sufficient time to nonprofessional occupations.
We received more than 40 comments occupations. Almost all others who
adjust their recruitment programs to the commented on the requirement opposed
requirements of the new system. on the proposed recruitment
requirements. Comments came from it, mostly because they felt it was
In response to commenters’ concerns ineffective.
about how proof of filing under the SWAs, employers, attorneys,
organizations, and private individuals. For the past 25 years, employers have
current regulations will be obtained, the
The SWAs, FAIR, and the AFL–CIO been required to place a job order as
regulation has been revised to provide,
were supportive, and even suggested part of their supervised recruitment
that if requested by the CO under
additional requirements. efforts. Placing a job order requires no
§ 656.20, the employer must send a copy
The remaining commenters were fee, and minimal effort from the
of the original application together with
generally opposed to the pre-filing employer. SWAs encourage everyone
any amendments to the appropriate ETA
recruitment requirements outlined in who is unemployed or looking for work
application processing center. Specific
the NPRM. Commenters objected to the to search the Job Bank for openings. We
instructions for the withdrawing of
requirements on the grounds that see no compelling reason to delete the
cases that are to be refiled under this
employers would not have enough requirement for a job order, which
final rule, will be posted at http://
discretion in their choice of recruitment reaches a large pool of applicants who
Employers that have already begun methods and the requirements were are actively seeking work.
supervised recruitment may not refile excessive. A number of commenters (2) Newspaper Advertisements
under this final rule and maintain the specifically compared the proposed rule
original application’s filing date. to current RIR requirements. AILA and Very few commenters discussed the
Therefore, the commenter’s concern ACIP, among others, suggested the new requirement for a Sunday advertisement
about losing recruitment information requirements be the same as for RIR versus a midweek advertisement. One
when applications are converted is not processing. This, they felt, would allow SWA called it an extremely important
an issue. employers to use real-world recruitment change, noting many employers
If operating experience indicates methods and prevent DOL from micro- deliberately avoid Sunday
further guidance on refiling cases is managing the recruitment process. advertisements because they are more
needed, we will issue to the SWAs and Other commenters did not specifically costly and more likely to yield a
COs a policy directive, which we will mention RIR processing, but stated the response.
publish in the Federal Register, proposed requirements were not real- Many commenters addressed the
outlining in further detail the world. requirement for two print
procedures to be followed in Comparing the requirements in the advertisements. Of these, the vast
adjudicating such requests. new system to RIR requirements majority opposed the requirement.
presents only part of the picture. Some commenters were concerned
(5) Priority in Processing Applications Employers may use RIR processing only about the cost. Most of these
One commenter addressed the for occupations for which few or no U.S. commenters worried that a long,
priority of applications filed before this workers are available. Employers who detailed advertisement would be far
final rule’s effective date. The file under the basic labor certification more costly than an RIR-style
commenter believed we should give process have always been required to advertisement. A couple of these
these pending applications priority in follow a specific recruitment regimen. commenters also felt that our estimate of

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$500 per advertisement was much too Therefore, SHRM asked that publication advertisement in the most appropriate
low. in a newspaper that does not have a city newspaper that serves the suburban
A more common objection was that Sunday edition be allowed if that area.
the proposed requirements did not newspaper is the most appropriate to We have also concluded there is no
reflect real-world practice. Most of the the occupation and the workers likely to compelling reason to require the two
commenters who objected to print apply for the job opportunity in the area Sunday advertisements be 28 days
advertisements focused on the high-tech of intended employment. apart. Therefore, we have deleted this
industry, although several referred to A number of commenters objected to requirement. The two advertisements
university research positions. These the proposed requirement that the two must be placed on different Sundays,
commenters, who rely heavily on online print advertisements be placed at least but the Sundays may be consecutive.
advertising, contended newspaper 28 days apart. The only timing requirement is the two
advertisements are ineffective. ACIP, Commenters who compare the cost of advertisements (as well as the job order)
among others, felt that print print advertising under the proposed must be placed more than 30 days but
advertisements were anachronistic. The rule to the cost under RIR processing less than 180 days before filing the
Society for Human Resource make an inappropriate analogy. They application.
Management (SHRM) stated the most use one RIR-style advertisement as the
current standard rather than the (3) Professional Journals
effective and cost-efficient ways to
recruit are not through print relatively detailed, three-day A number of commenters addressed
advertisements, but through alternatives advertisement required under basic the requirement for an advertisement in
such as notices in job centers and job- processing. We believe the cost of two a professional journal if the job requires
search websites. One university felt a Sunday advertisements is not an experience and an advanced degree.
journal devoted to the specific academic unreasonable expense. See our One SWA prevailing wage specialist
field was more effective than a discussion of advertisement contents supported the requirement that
newspaper of general circulation. This below for a more comprehensive professional jobs be advertised in
commenter also believed for jobs discussion of cost. professional journals. This commenter
requiring experience and an advanced Although commenters claimed claimed that computer companies’ web
degree, two journal advertisements in newspaper advertisements are highly advertising is easy to post on the
two separate months should be allowed ineffective, our program experience has internet, print, and then take off the
in lieu of the two newspaper shown these arguments are overstated. internet. FAIR suggested requiring a
advertisements. Another university Unlike other forms of recruitment, professional journal advertisement in
proposed that colleges and universities newspaper advertisements are addition to the two Sunday newspaper
be allowed to use professional journals, appropriate for all job categories. A advertisements. FAIR also felt that more
announcements on the websites of review of the classifieds, especially restrictive requirements in the job
professional organizations, mailings to Sunday editions, shows that newspaper opportunity should require more
academic peers, and internal human advertisements are still customary for extensive recruitment. One university,
resources websites. both high-tech and non-high-tech jobs. although not specifically addressing the
Some of the commenters who favored Carving out exceptions for employers requirement for a journal advertisement,
no print advertisements suggested, in who prefer to rely on other sources of felt a journal devoted to the specific
the alternative, only one Sunday print recruitment is inconsistent with the academic field was more effective than
advertisement, consistent with current streamlined system. The requirement newspapers of general circulation. This
RIR requirements. SHRM favored one that print advertisements appear in the commenter also felt that for jobs
Sunday newspaper advertisement plus Sunday edition of a newspaper of requiring experience and an advanced
the option of either a second Sunday general circulation most appropriate for degree, two journal advertisements in
newspaper advertisement or an the occupation and the workers likely to two separate months should be allowed
advertisement with an alternate source apply for the job ensures the in lieu of the two newspaper
appropriate to the occupation and to the advertisement will reach the widest advertisements.
workers likely to apply for the job. possible pool of potentially qualified On the other hand, at least one
AILA raised a concern about applicants. commenter felt the journal requirement
advertising for nonprofessional No serious objections were raised to was excessive. This commenter stated
occupations. Noting the major source of requiring Sunday, in lieu of midweek, that most labor certification positions
recruitment for some nonprofessional advertisements for professional are for experienced workers, and many
jobs is a trade or professional occupations; therefore, this requirement positions in the technology sector
organization or a job fair, AILA is retained. However, we recognize an require a master’s degree; therefore the
proposed that either of these two exception is needed in limited requirement would apply to a very large
recruitment sources be allowed in lieu circumstances. Therefore, this final rule number of applications. This
of the second newspaper advertisement. provides in those cases in which commenter also stated that professional
Commenters did not specifically advertising in a rural newspaper would journals are a customary source of
object to placing Sunday, versus be appropriate but for the fact that the recruitment only for high-level
midweek, advertisements, although a newspaper has no Sunday edition in the managerial, executive, and scientific
couple of commenters who objected to area of intended employment; the positions; therefore, we should not
advertising costs noted Sunday employer may use the edition with the expand the journal requirement to cover
advertisements were more costly. widest circulation in the area of mid-level, journeyman positions. AILA
SHRM, however, pointed out not all intended employment. However, the pointed out in some cases there is no
suburban and rural newspapers publish employer must be able to document the appropriate professional journal or it is
a Sunday edition. Referring to language edition chosen has the widest not industry practice to advertise in a
in the NPRM, SHRM noted it would be circulation. This exception applies to professional journal. At least one
appropriate to advertise in a suburban rural newspapers only; if a suburban commenter objected to a journal
newspaper of general circulation for newspaper has no Sunday edition, the advertisement because it was more
certain nonprofessional occupations. employer must publish a Sunday costly than advertising in a newspaper.

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We have concluded although made in conjunction with the print involved in the application as is
professional journals are an appropriate advertisement. required for the newspaper
source of recruitment for many jobs that A few commenters objected to the advertisement. Allowing employers to
require an advanced degree, the time requirements for the additional recruit for the occupation involved in
requirement in the NPRM is too broad. recruitment steps. AILA noted the application should also work to
Therefore, this final rule in employers may want to blitz the minimize employer costs to conduct
§ 656.17(e)(1)(i)(B)(4) allows the marketplace in a relatively short period special recruitment efforts solely to
employer discretion in using a (e.g., 1 to 2 months). AILA also satisfy the alternative recruitment steps.
professional journal. If a journal requested clarification concerning when In sum, we do not believe the cost to
advertisement is appropriate for the job the recruitment steps must be taken. employers of the additional recruitment
opportunity, the employer may choose, We recognize not all of the additional steps will be significant.
but is not required, to use a journal recruitment steps are available or The timing requirements in this final
advertisement in lieu of one of the appropriate for all employers; however, rule are the same as those in the NPRM.
Sunday print advertisements. employers are required to select only All additional recruitment steps must be
three of the additional steps listed in the taken within 6 months of filing;
b. Additional Recruitment Steps for NPRM. The list of alternatives was however, employers are not required to
Professional Occupations based on what our program experience take a different step each month. Only
We received numerous comments has shown are real-world methods one of the additional steps may be taken
about the three additional steps required normally used by businesses to recruit within 30 days of filing.
for professional occupations. With few workers.
Although we are retaining the c. Recruitment for Occupations in
exceptions, commenters opposed either Appendix A to the Preamble
the number of additional steps or the requirement for three alternative steps,
we agree the list of alternatives is too In Appendix A to the preamble, we
limited list of alternatives.
narrow. Some of the suggested have published a list of occupations for
Most commenters felt requiring three alternatives, such as searches of résumé which a bachelor’s or higher degree is
additional recruitment steps was too databases, we have rejected because a customary requirement, and for which
burdensome, especially on smaller they are too difficult to verify; however, the employer must recruit under the
employers. One commenter stated the others are appropriate as well as easily standards for professional occupations
additional recruitment steps were a verifiable. Therefore, we have expanded set forth in § 656.17(e)(1). We are not
drastic increase over RIR requirements. the list of alternatives in codifying this list of occupations so that
AILA stated DOL had failed to address § 656.17(e)(1)(ii) of this final rule to we can appropriately and timely modify
how much the additional steps would include the following forms of it as necessary without having to engage
cost and whether they were more recruitment: an employee referral in the rulemaking process.
effective than the employers’ normal program, if it includes identifiable
recruiting practices. Another commenter (1) Definition of Professional and
incentives; a notice of the job opening
felt the additional steps would Nonprofessional Occupations
at a campus placement office, if the job
discourage employers from applying for requires a degree but no experience; AILA maintained the definition of
labor certification. Many commenters local and ethnic newspapers, to the professional occupation should not be
recommended eliminating or decreasing extent they are appropriate for the job limited to an occupation for which the
the number of additional steps. opportunity; and radio and television attainment of a bachelor’s degree is a
A number of commenters felt the list advertisements. A sufficient number of usual requirement because it neglects
of six additional recruitment steps was the alternatives are free or low in cost individuals who gain professional
too narrow, and employers should have so as not to impose an undue financial expertise through work experience
more flexibility to select steps that are hardship on the employer. instead of education. To set the standard
consistent with the employer’s standard In addition to expanding the list of between professional and
recruiting procedures. Another alternatives, this final rule incorporates nonprofessional based on whether the
commenter noted all employers may not changes to two of the alternatives listed person has a bachelor’s degree or not is
be able to take advantage of all six steps; in the NPRM. An online job listing, even arbitrary and does not reflect the real
some steps may be too costly and others if posted in conjunction with a print world or take into account individuals
may not always be available. This advertisement, qualifies as an additional who have gained professional expertise
commenter suggested that alternate recruitment step. The use of a through work experience instead of
recruitment steps include notification to professional or trade organization is still education. AILA suggested we should
campus placement offices, postings at acceptable, but must be documented by create a broader, more realistic
continuing education seminars, and copies of pages of newsletters or trade definition for professional and
recruitment at companies with recent journals containing advertisements for nonprofessional occupations, such as an
layoffs. Other commenters suggested the job opportunity involved in the occupation for which the attainment of
expanding the list of additional steps to application. a bachelor’s or equivalent is the usual
include employee referrals, help-wanted We believe the additional recruitment requirement for the position. The
signs, signage on the company building, steps represent real world alternatives. nonprofessional occupation definition
employee referral programs, other media The overwhelming majority of should also reflect this more realistic
(such as radio, billboards, or television), employers seriously recruiting for U.S. understanding: ‘‘an occupation for
print advertisements in any publication workers would routinely use one or which the attainment of a bachelor’s or
(such as local and ethnic papers), more of the listed additional equivalent is not the usual requirement
searching commercial résumé databases, recruitment steps. Additionally, it for the position.’’
and open houses. More than one should be noted the alternative AILA’s comments indicate a
commenter felt a job posting on a recruitment steps only require misunderstanding of how the list of
newspaper-sponsored job search employers to advertise for the occupations will be applied and include
website should count as an additional occupation involved in the application a suggestion for defining a professional
step, even though the web posting was rather then for the job opportunity occupation we do not have any way to

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77346 Federal Register / Vol. 69, No. 247 / Monday, December 27, 2004 / Rules and Regulations

administer. The list of occupations on experience and education is equivalent (BLS) to describe the educational
Appendix A is a list of occupations for to a bachelor’s or higher degree. requirements of occupations that appear
which a bachelor’s or higher degree is in the Occupational Outlook Handbook.
(2) Presumptions and Preferences
the usual requirement for entry into the In an attempt to improve the
occupation. The fact the alien does not AILA also opposed the publication of classification system used to describe
hold a bachelor’s degree has no bearing the Appendix A listing of occupations, the educational requirements of
on the recruitment regimen to be whether it was codified or not, because occupations, the BLS conducted an
followed by employers. The primary publishing such a list immediately extensive analysis of the education and
purpose of the list of occupations is to creates a presumption that the listed training required of all 513 occupations
provide employers with the necessary occupations are the only occupations in the national-industry matrix for
information to determine whether to that the CO should consider as which employment projections are
recruit under the standards provided in ‘‘professional.’’ AILA noted several developed by BLS, not just the 250
the regulations for professional ‘‘professional occupations’’ that may occupations covered in the
occupations or for nonprofessional well require bachelor’s degrees or Occupational Outlook Handbook As
occupations. equivalent experience as a minimum stated in Chapter 1 of the 1996 edition
Publishing a list of occupations we requirement, such as highly-trained of Occupational Projections and
consider appropriate for recruiting gourmet chefs, hotel managers, and Training Data:
under the standards for professional graphic artists, are not on the list at all.
The task proved difficult for several
occupations provides employers a Last, AILA was concerned the list of
reasons, but principally because for most
degree of certainty they would not have occupations would be used by DHS for occupations there is more than one way to
if we adopted the proposal advanced by the purpose of classifying occupations qualify for a job. For example, registered
AILA. They proposed to simply define into preference categories. nurses may obtain their training in bachelor’s
the terms professional and In our view, the only presumption the degree or hospital diploma programs. The
nonprofessional and allow employers to list of occupations should create is that challenge was to determine the training
seek to demonstrate the position for if the occupation involved in the category that best reflects the typical
application is on the list of occupations conditions and the preference of most
which certification is sought meets the
in Appendix A, employers must follow employers.
regulatory definition of professional or
nonprofessional and therefore the the recruitment regiment for We are not aware of a more
employer has chosen the proper professional occupations at § 656.17(e) comprehensive data base of occupations
recruitment regimen for that position. of this final rule. On the other hand, if that require a bachelor’s or higher
Certainty is desirable as employers are the occupation is not on the list in degree as an entry requirement than the
required to recruit before they file an Appendix A, the employer is free to use one used to develop the list of
Application for Alien Employment the recruitment regimen for professional occupations in Appendix A. The NPRM
Certification. If the occupation involved occupations if it believes it is likely to published May 6, 2002, at 57 FR 30471,
in the application is listed on Appendix bring more responses from, able, willing provides background on how the list
A, the employer simply follows the and qualified U.S. workers than would was developed. (See also Occupational
recruitment requirements for the recruitment regiment for Outlook Quarterly, Winter 1995–96,
professional occupations at nonprofessional occupations. Volume 39, Number 4.) Additional
§ 656.17(e)(1). For all other occupations We believe AILA overstates the information about the occupations,
employers can simply recruit under the possibility DHS will use the including their definitions, can also be
requirements for nonprofessional occupations listed on Schedule A for obtained from O*Net online at http://
occupations at § 656.17(e)(2). the purpose of classifying positions into
Although the occupation involved in preference categories. Rather, we have
every indication the DHS will continue (3) Recruiting and Advertising
a labor certification application may be
to make preference classifications Requirements
a nonprofessional occupation, the
regulations do not prohibit employers according to the job requirements that AILA and at least one other
from conducting more recruitment than have been entered on the application for commenter were concerned that the
is specified for such occupations. the certified job opportunity. Employers designation of an occupation as
Employers that conduct more will still be free to provide supporting professional or nonprofessional would
recruitment than is required will not documentation to the DHS during the restrict the ability of the employer to
have their applications denied for that petition process, as they do now, to identify specific education and
reason. Employers filing applications demonstrate the alien’s work experience experience requirements when
involving nonprofessional occupations is equivalent to a bachelor’s or higher completing the Application for
are free to recruit under the degree if they have specified such on Permanent Employment Certification
requirements for professional the Application for Permanent (Form ETA 9089).
occupations if they believe by so doing Employment Certification. We also note The fact an occupation involved in a
it will yield more applications from this list is not intended to be used to labor certification application is listed
willing, able, and qualified U.S. qualify an alien for purposes of on Appendix A should have no bearing
workers. eligibility under the H–1B and H–1B1 on the minimum job requirements
With respect to the definition of program. It should also be noted the list employers specify for the job
professional occupation suggested by of occupations is not part of the opportunity. The job requirements listed
AILA, we do not have any standards or Application for Permanent Employment on the application form will be
information that would allow us to Certification (Form 9089). determined in accordance with sections
make the equivalency determination With respect to the several 656.17(h) and (i) of the final rule that
called for under the definition suggested occupations noted by AILA that may sets forth the standards for determining
by AILA. We have never determined in well require a bachelor’s degree or the appropriate requirements for a job
administering the permanent labor equivalent experience, it should be opportunity. It should also be noted the
certification program what work recognized the list is based on work final rule, unlike the proposed rule,
experience or combination of work done by the Bureau of Labor Statistics provides standards for the use of

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‘‘business necessity,’’ alternative advertisements. Another commenter requirement, and condition of
requirements, and when experience voiced a similar opinion, claiming employment; rather, employers need
gained with the employer may be used advertisements designed to satisfy labor only apprise applicants of the job
as qualifying experience. Consequently, certification requirements tell the reader opportunity. As long as the employer
the final rule does not contain a the position is not really available. can demonstrate a logical nexus
provision, as was proposed in the Instead of a detailed job advertisement, between the advertisement and the
NPRM, that a job requirement for a several commenters suggested position listed on the employer’s
bachelor’s or higher degree does not permitting the use of large catch-all application, the employer will meet the
have to be justified if: advertisements that cover many requirement of apprising applicants of
• The occupation involved in the occupations but do not include much the job opportunity. An advertisement
employer’s application is on a list of detail regarding each job opportunity. that includes a descriptive job title, the
occupations from ETA for which a Because many employers already place name of the employer, and the means to
bachelor’s or higher degree is the these types of advertisements, contact the employer might be sufficient
normal entry requirement for the commenters felt our acceptance of them to apprise potentially qualified
occupation; and as qualifying recruitments would allow applicants of the job opportunity.
• The education and training employers to use pre-existing Employers need not specify the job site,
requirements for the employer’s job advertisements that encompass the unless the job site is unclear; for
opportunity is consistent with the employer’s past recruiting efforts. AILA, example, if applicants must respond to
education and training required for the as well as several individual attorneys, a location other than the job site (e.g.,
occupation involved in the employer’s commented that general job company headquarters in another state)
application. advertisements will attract more or if the employer has multiple job sites.
5. Required Advertisement Contents applicants than job-specific, detailed If an employer wishes to include
advertisements. Employers have used additional information about the job
Under the proposed rule, employers these types of advertisements for opportunity, such as the minimum
were required to place advertisements applications under the RIR process, and education and experience requirements
that apprise U.S. workers of the job many commenters objected that the or specific job duties, the employer may
opportunity, include a description of proposed regulation would make the do so, provided these requirements also
the geographic area of employment and use of this format impossible. appear on the ETA Form 9089.
any travel requirements, and the offered In contrast to the commenters who Employers should note, however, that
rate of pay. The advertisement must also criticized the proposed regulation as while they will have the option to place
include the name of the employer and requiring too much specificity in the broadly written advertisements with few
direct applicants to apply to the advertisements, a number of details regarding job duties and
employer. The proposed rule was commenters expressed concerns that the requirements, employers must prepare a
drafted to ensure employers conduct an regulation’s language was too vague, recruitment report that addresses all
adequate test of the labor market and and employers would not know what minimally qualified applicants for the
document that qualified U.S. workers information must be included in the job opportunity. If an employer places a
are unavailable for the job opportunity. advertisements. Several commenters felt generic advertisement, the employer
We received comments from more the regulation’s use of the term may receive a large volume of
than 30 individuals and organizations ‘‘apprise’’ was ambiguous and could applicants, all of whom must be
addressing the proposed language of the produce confusion among employers. addressed in the recruitment report.
advertisement. Most of the commenters One commenter suggested the proposed Employers placing general
objected to the advertising contents as regulation’s language be changed to advertisements may wish to include a
proposed in the regulation. Comments reflect that statement of the job title job identification code or other
were also submitted by SWAs and FAIR, alone is enough, so long as the job title information to assist the employer in
which generally supported the proposed provides enough information to clearly tracking applicants to the job
requirements for advertisements. identify the job opportunity. Another opportunity.
a. Level of Specificity commenter inquired whether an
b. Advertisement Cost
employer’s recruitment advertisements
The most common objection to the have to be exact matches with regard to Several commenters objected to the
proposed rule was that it requires too content and salary, or whether they requirements for the advertisements on
much detail in the print advertisements. need only match the general terms and the basis of cost, and disagreed with our
Many commenters echoed AILA’s conditions of the sponsored position. cost estimate of $500 to place an
arguments that employers rarely place AILA opined that the regulation’s advertisement that would fulfill the
advertisements that contain a full job requirement that the advertisement regulation’s requirements. AILA
description, the employer’s name, and ‘‘describe the vacancy sufficient enough commented that suitable advertisements
the offered salary, but instead place to apprise U.S. workers of the job can easily cost over $1,500 each, and
general, less-detailed job search opportunity’’ was too subjective, and would be a significant economic burden
advertisements. AILA further proposed an alternative wording of for employers. A medical research
questioned whether we had any proof ‘‘provide the occupation, job title, or a center commented it has limited funds
that this level of detail in description of the position for which for advertising, and requiring long
advertisements has been found to be certification is sought.’’ advertisements will only benefit
more effective than employers’ standard We believe the proposed regulatory publications, not find more qualified
practices in recruiting U.S. workers. language gives employers flexibility to workers.
One law firm commented their draft appropriate advertisements that We believe the costs of the mandatory
experience has been that advertisements comply, and that lengthy, detailed advertisement do not constitute an
with long, detailed job descriptions are advertisements are not required by the unreasonable expense. The current
seen as legal notices rather than as real regulation. The regulation does not regulations already require employers to
advertisements, leading potential job require employers to run advertisements place advertisements at the employer’s
applicants to ignore these detailed enumerating every job duty, job expense, whether the employer

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77348 Federal Register / Vol. 69, No. 247 / Monday, December 27, 2004 / Rules and Regulations

conducts recruitment under the employers if it is determined the vacancies, as opposed to employment
auspices of the SWA, or whether the prevailing wage rate used in the advertisements placed for other
employer submits its application under advertisement was incorrect and the purposes, such as to test wage rates or
the RIR process. While Sunday employer must readvertise with the identify competitors’ key staff. Several
advertising rates are generally higher correct prevailing wage rate. One SWAs supported inclusion of the
than rates on other days of the week, the attorney addressed the issue of employer’s name in the advertisement.
employer may publish a shorter confidentiality of salaries, which may Despite the objections of some
advertisement under this final rule than vary among the workers in the same commenters, the employer’s name must
is required under the current system. position in the same department within appear in the advertisement. Review of
Employers also are only required to the same organization; salary is often employment advertisements clearly
place two 1-day advertisements, unlike discussed last in the interview process indicates the vast majority of these
the current system’s requirement of a 3- and is subject to negotiation. This advertisements include the employer’s
day placement. A representative from commenter felt requiring employers to name. The employer’s name allows
DOL contacted major newspapers in post the offered salary in the potential applicants to identify the
various U.S. cities and inquired about advertisement was an unreasonable employer, and applicants will be able to
advertising rates for Sunday and deviation from the standard practice of better determine if they wish to apply
midweek advertisements. Estimated professional recruitment. for the advertised position. Applicants
costs for placing two 10-line Sunday After review and consideration of also may be unwilling to submit
advertisements in these papers ranged both the comments and our program ŕesuḿes to a blind advertisement, as
from $400 to $1,100, whereas a 3-day experience reviewing employment they can not tell who will receive their
midweek advertisement of the same advertisements, we have revised this ŕesuḿe. Requiring the employer’s name
length would cost between $330 and final rule to eliminate the requirement in the advertisement also allows us to
$1,100. The Sunday advertisement costs that the wage offer must be included in match the employer’s advertisement to
do not appear to be as high as claimed the advertisement. Lengthy program the sponsored job opportunity in the
by the commenters. Further, our experience reviewing employment event of an audit. We have concluded
program experience is that most 3-day advertisements has indicated that most these benefits outweigh confidentiality
advertisements under the current employment advertisements do not concerns of employers. In addition, we
system are longer than 10 lines, include a wage offer. If an employer note employers are required by statute
indicating that the two Sunday chooses to include the wage in the to provide notice that the employer is
advertisements will cost less than the 3- advertisement, the employer may do so; seeking a labor certification for the job
day advertisement requirement under however, inclusion of the wage is not opportunity, making it unlikely any of
the current regulations. mandatory. If the employer does include the job information is in fact
a wage in the advertisement, the wage confidential in nature. See 8 U.S.C. 1182
c. Wage Offer in the Advertisement rate must be equal to the prevailing note.
The vast majority of commenters wage rate or higher. Regarding wage
objected to the inclusion of the wage in e. Placement of Advertisement in
ranges, we have not modified the
the print advertisement. Many Newspaper
regulation to specifically permit wage
contended few real-world employment ranges; however, consistent with our One commenter recommended the
advertisements include a wage, longstanding policy, the employer may regulation contain language clarifying
particularly for professionals and advertise with a wage range as long as where in the classified advertisements
executives. These commenters noted if the bottom of the range is no less than the advertisement must be placed, to
a salary is included in an advertisement, the prevailing wage rate. avoid the problem of advertisements
it is typically for a nonprofessional being ‘‘buried’’ under an inappropriate
position and is listed as an hourly d. Employer’s Name in the heading or job title. This commenter
amount. Advertisement noted if an employer places a job
AILA strongly opposed any inclusion Commenters also discussed the advertisement under the wrong keyword
of the rate of pay in the advertisement, inclusion of the employer’s name in the or heading, potentially qualified U.S.
but proposed if the wage requirement is advertisement. A few commenters workers may never see the employer’s
retained, we allow employers to insert claimed requiring employers to include advertisement. The commenter
a pay range in the advertisement, their name on advertisements would suggested the regulation be amended to
provided the bottom of the range is no conflict with standard practice in many add a requirement that ‘‘the
less than the prevailing wage rate. A industries, and could lead to disclosure advertisement must be placed where
number of universities opposed of confidential company information. advertisements for the same type of
inclusion of the wage, as their normal AILA asserted in certain industries, occupation are normally located.’’
recruitment efforts often do not include such as advertising agencies and We have concluded a specific
the salary. These commenters noted if investment banks, it is routine for prohibition on buried advertisements
the employer wishes to sponsor a employers to place advertisements that need not be included in this final rule.
foreign worker immediately following do not include the employer’s name. Employers are still required to recruit in
the initial recruitment, the employer AILA suggested as long as the industry, good faith and placement of the
would not be able to use the place of employment, and type of employer’s advertisement under an
advertisements from the original position is identified, the employer inappropriate heading or keyword
competitive recruitment, as those name need not be included in the would be considered a failure to make
advertisements would not include the advertisement. good-faith efforts to recruit U.S.
wage. The universities contended that FAIR expressed strong support for workers. See H.C. LaMarche Enterprises,
requiring a second round of including the employer’s name in the Inc., (87–INA–607, October 27, 1988)(en
advertisements merely to include the advertisement, asserting most U.S. banc), Wailua Associates, (88–INA–533,
wage would appear to be punitive. A workers recognize advertisements June 14, 1989), Quality Rebuilders
few commenters noted the wage naming the employer are more likely to Corporation, (93–INA–144, June 28,
requirement could create a burden for represent bona fide openings or 1994). If an application is selected for

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audit, we will review the employer’s 6. Recruitment Report job or recruited for multiple open
recruitment effort, and if an employer’s The final rule continues to provide for positions, asserting employers with
advertisement were placed under a pre-filing recruitment, and requires multiple openings should not have to
clearly inappropriate keyword or in the employers to prepare a recruitment match every résumé received to an
wrong section of the classifieds (such as report that must be submitted to the CO individual job and track its outcome.
under ‘‘legal notices,’’ rather than if requested in an audit or otherwise. AILA asserted it was burdensome to
‘‘employment opportunities’’ or ‘‘help The employer’s recruitment report must require an employer who is constantly
wanted’’), we would conclude the recruiting and filing positions to have to
describe the recruitment steps
employer’s recruitment was not done in summarize the lawful job-related
undertaken and the results achieved, the
good faith and either deny the reasons for rejecting each applicant.
number of hires, and, if applicable, the In contrast to the recommendations
application or direct the employer to number of U.S. workers rejected,
complete additional recruitment under from AILA and ACIP for less-detailed
summarized by the lawful job-related recruitment reports, a union commenter
our supervision. reasons for such rejections. After recommended employers be required to
f. Inclusion of Physical Address in the reviewing the employer’s recruitment submit the recruitment report and
Advertisement report, the CO may request the ŕesuḿes copies of applicants’ résumés when the
or applications of the U.S. workers application is filed with DOL. FAIR
An SWA commenter recommended sorted by the reasons they were rejected.
advertisements be required to include asserted the proposed summary
We received comments from 40 recruitment report fails to provide
the employer’s physical address, in individuals and organizations about this
addition to the employer’s name. AILA minimum adequate protection to U.S.
section of the proposed regulations. worker applicants, who could not
questioned the regulation’s requirement
that applicants be directed to report to a. Concerns About Preparing determine from the report if they were
or send ŕesuḿes to the employer. AILA Recruitment Report rejected for legitimate reasons. FAIR
proposed applicants be directed to proposed employers be required to
Several employers and attorneys and provide the summary recruitment report
report or write to a place, post office organizations representing employers
box, or e-mail location, and this site to all applicants, with a notice
submitted comments expressing describing how the applicant could file
need not be the employer’s, provided concerns about the feasibility of large
the geographic location of the employer an appeal to the CO. FAIR also
companies tracking recruitment results recommended the summary recruitment
is identified. with the level of detail required by the report be subject to the same posting
As the name of the employer will proposed regulation. These commenters requirements of 20 CFR 656.10(d), so
appear in the advertisement, we see no recommended employers be allowed to other U.S. workers at the employer’s job
need to require the employer’s physical submit an RIR-style recruitment report location are informed about the results
address in the advertisement. Employers that would discuss the employer’s of the recruitment process.
may designate a central office or post recruitment in general terms. A SWA commenter praised the
office box to receive ŕesuḿes from ACIP claimed the administrative proposed content for the recruitment
applicants, provided the advertisement burden of tracking individual job report, noting under the current RIR
makes clear where the work will be applications against specific positions process, many large employers avoid
performed. would be overly burdensome on the providing specific information about
g. Inclusion of Posting Requirements in employer, and recommended employers numbers of applicants and the
One Advertisement instead be allowed to submit a summary employer’s reasons for rejecting U.S.
of the employer’s overall recruitment workers who apply. This commenter
Another SWA commenter proposed at results. A high-tech company echoed stated large employers claim they have
least one of the mandatory these comments, and requested the rule no way to extract position-specific
advertisements include the language of be clarified to state that employers need information, because they accumulate
the posted notice requirements at not report on every résumé received and résumés from all around the country.
§ 656.10(d) with respect to furnishing of need not track résumés to specific The commenter recommended the rule
documentary evidence bearing on the recruitment sources. be amended to require applicants to
application. The commenter suggested AILA asserted the proposed mail their résumés directly to the
this would provide an opportunity for recruitment report’s one-job-at-a-time employer’s job site, rather than to a
interested U.S. workers to provide approach is far removed from the national location, or require employers
comments or complaints to the DOL, business reality of modern businesses, to include a job identification code with
and would balance employers’ bias and the proposed rule fails to take into each advertisement, to ensure the
towards the sponsored foreign worker. account the added expense for employer can match applicants to each
This recommendation is inconsistent employers to assess job applicants in job opportunity. This commenter
with this final rule’s goal of using the this fashion. AILA favored adoption of concluded without some type of job-
advertisement for recruitment of an RIR-style recruitment report, identification system, national
potentially qualified U.S. workers. whereby an employer would report the employers will make little effort to
Potential job applicants might see the number of openings for the occupation prepare a breakdown of recruitment
advertisement not as a job opportunity, at the beginning and end of the results by state and job. Another SWA
but as a legal or information notice for recruitment report, the number of commenter inquired how the
the employer, and would be résumés received, the number of employer’s recruitment report would
discouraged from applying to the applicants interviewed, and the number incorporate the results of the job order.
advertisement. Also, a number of other of hires by the employer for the The commenter asked if SWAs will be
commenters noted advertisements that occupation in the same period. AILA required to provide the employer with
were clearly for labor certification further recommended the level of detail a copy of the job order as well as a list
purposes drew little or no applicants in the employer’s recruitment report of referrals.
compared to non-labor certification should depend on whether the The employer has always been
advertisements. employer has recruited for an individual required to document that U.S. workers

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are unavailable for a sponsored job audit letter will result in the denial of The overwhelming majority of
opportunity. This outcome is compelled the employer’s application, and may commenters objected to the proposed
by the statutory requirement that the result in the employer being required to language in § 656.17(f)(2) of the NPRM.
Secretary of Labor certify that qualified undergo supervised recruitment for up AILA expressed strong opposition to
U.S. workers are unavailable for the job to 2 years, we believe employers will this proposed language, claiming this
opportunity. Each application is for a have a strong incentive to prepare the rule was derived from DOL’s suspicion
single, specific job opportunity, not for recruitment report and promptly submit that employers inflate job requirements
general job opportunities with the it if requested during an audit. The when filing labor certifications.
employer. Without a nexus between the employer must provide lawful job- AILA further asserted the proposed
recruitment report and the application, related reasons for rejecting each rule mandates that every U.S. worker is
the Secretary is unable to fulfill the applicant as part of the recruitment potentially qualified for a position even
statutory obligation to certify that report, which addresses the AFL–CIO’s if he or she does not meet every
qualified U.S. workers are unavailable. comment that the employer provide a minimum requirement, resulting in an
While it is undoubtedly easier for rationale for not hiring U.S. workers over-broad and unmanageable definition
employers to prepare a general who applied for the job opportunity. of the term ‘‘qualified’’ U.S. worker.
recruitment report that does not track FAIR’s recommendations are so novel AILA claimed the proposed rule
every applicant to a specific position, they would require another opportunity attempts to reverse the long-accepted
this type of report is useless for for notice and comment before any such rule that an employer may reject a U.S.
determining whether the employer rules could be imposed. Moreover, these worker who lacks a stipulated minimum
rejected qualified U.S. workers in favor rules appear to be inconsistent with requirement for the position. This
of the sponsored foreign worker. real-world recruitment practices, in would result in a subjective and
We note most of the objections to the which most employers only tell each unmanageable standard of labor
recruitment report are based on a applicant the result of his or her certification adjudications and would
comparison of the proposed rule to the individual application. Providing encourage a substantial volume of
type of recruitment report we have applicants with a report on the litigation over the issue of whether
accepted under the RIR process. RIR decisions made on all applicants to a job training is feasible.
processing rests on a determination Requiring employers to consider as
opportunity would appear to be
there is little or no availability of U.S. qualified U.S. workers who can learn
problematic due to confidentiality
workers in an occupation; however, the the necessary skills in a reasonable
new system does not contemplate any period of on-the-job-training is an
such front-end determination being b. Job Qualification Through Reasonable important corollary to the long standing
made. All applications, including ones Period of On-the-Job Training regulation, at § 656.24(b)(ii), that
for which there may be considerable provides U.S. workers will be deemed
A few commenters expressed support qualified if ‘‘the worker, by education,
U.S. worker availability, are treated the
for the provision in § 656.17(f)(2) of the training, experience, or a combination
In response to numerous comments NPRM, providing that a U.S. worker is thereof, is able to perform in the
from employers who receive a large able and qualified for the job normally accepted manner the duties
volume of unsolicited resumes, we are opportunity if the worker can acquire involved in the occupation as
not including in the final rule the the skills necessary to perform the customarily performed by other U.S.
requirement that the recruitment report duties involved in the occupation workers similarly employed * * *.’’
identify the individual U.S. workers during a reasonable period of on-the-job This corollary has been affirmed at the
who applied for the job opportunity. training, as a sensible means to protect circuit court level in Ashbrook-Simon
However, the employer retains the the interests of U.S. workers. Two Hartley v. McLaughlin, 863 F.2d 410
responsibility for proving that U.S. SWAs, an attorney, and FAIR supported (5th Cir. 1989), which stated DOL ‘‘can
workers are not available for the job designating a U.S. worker as qualified if discount * * * job requirements listed
opportunity. The recruitment report the necessary skills can be acquired by the employer which constitute skills
does not impose a new requirement, during a reasonable period of on-the-job * * * which can be acquired during a
only a new means by which recruitment training. FAIR additionally reasonable period of on-the job
information must be submitted when recommended if an occupation has an training.’’
and if we request it. For those SVP of 1 year or less, that 1 year be Most of the commenters erroneously
employers who run generic help wanted presumptively considered a reasonable read the proposed rule as stating a U.S.
advertisements and are concerned about period for training, and thus render the worker who failed to meet the
tracking applicants, employers may run labor certification application ineligible employer’s stated minimum
advertisements more closely matched to for approval if any U.S. workers apply. requirements, such as educational
the relevant labor certification A SWA commenter additionally noted background, training, or years of
application or include a job code that many employers will recognize an alien employment experience, must be
the employer may use to track responses as having the functional equivalent of a deemed qualified. Under the final rule,
to the advertisement. college degree, based on a combination as in the current regulations, an
With regard to the recommendations of education, training, and experience. applicant’s failure to meet the
that employers submit copies of the This commenter felt employers rarely employer’s stated minimum
recruitment report and résumés when apply this educational equivalency requirements is a lawful reason for
the application is filed, this proposal is standard to U.S. workers who apply for rejection; however, if a worker lacks a
not compatible with the attestation the job opportunity, and instead skill that may be acquired during a
system we have adopted. We believe we automatically eliminate workers from reasonable period of on-the-job training,
can appropriately obtain these materials consideration if their résumés do not list the lack of that skill is not a lawful basis
through the use of the audit letter or a college degree. The commenter for rejecting an otherwise qualified
other request from the CO. Further, suggested we address this issue when worker. This final rule does not specify
because an employer’s failure to submit employers reject U.S. workers who lack what constitutes a reasonable period, as
the recruitment report in response to the a college degree. it will vary by occupation, industry, and

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job opportunity. The COs are the market often demands that new the NPRM and business necessity,
experienced in assessing the positions be formed or old positions be commenters did not suggest any
qualifications of applicants, and we do reformulated, and U.S. businesses solution nor could we identify a middle
not believe this rule will present any should not be hindered by limiting new ground solution. Any alternative to
difficulty. We disagree with the positions to ones previously held by a business necessity is likely to be equally
comments that suggested the rule U.S. worker. Another commenter, a subjective, and business necessity is a
creates disparate hiring standards for high-tech employer, viewed the concept with which we and the
U.S. workers and foreign nationals. proposal as effectively blocking all employer community are familiar. This
Many employers hire applicants with emerging technology and evolving final rule marks a return to the status
the expectation the applicant will have positions that did not exist previously. quo by incorporating the standard for
to undergo some amount of on-the-job A few commenters observed that business necessity adopted by BALCA
training. requiring an employer to show it has in Information Industries (88–INA–92,
Regarding educational equivalencies, previously employed a U.S. worker in February 9, 1989) (en banc). This final
we lack adequate information to the position would hurt new companies rule provides in § 656.17(h)(1) to
determine whether a given worker’s because these companies may not have establish business necessity an
combination of education, training and had a position open prior to the current employer must demonstrate the job
experience is the functional equivalent position. Other commenters saw the requirements bear a reasonable
of a college degree. While we are aware proposal to eliminate business necessity relationship to the occupation in the
some employers will accept a specified as especially harmful to small context of the employer’s business and
degree or its equivalent, we do not see businesses that may not have enough are essential to perform, in a reasonable
a need to add a requirement that work to support more than one person manner, the job duties as described by
employers consider whether a U.S. in the position. Some universities noted the employer.
worker’s experience, training and academic research and original This final rule also clarifies our long-
education is the equivalent of a required publication would be harmed because a held position that the regulatory
degree. degree and a designated number of years provisions that deal with unduly
of experience do not capture the full restrictive requirements and business
7. Job Requirements complement of necessary qualifications. necessity also apply to unduly
a. Business Necessity Standard and Job AILA and several others commented restrictive job duties. It has always been
Duties there was no factual basis for our our position that applications for labor
rationale for eliminating business certification may not describe the job
The NPRM proposed retention of the necessity. AILA also commented the opportunity in an overly restrictive
current standard that the employer’s job elimination of business necessity would manner, thereby artificially excluding
requirements must be those normally unjustifiably renounce the legacy of U.S. workers who are minimally
required for jobs in the United States BALCA and the Federal courts, and the qualified for the position. Such
and the employer’s job requirements proposal ignores a quarter century of restrictions can manifest themselves
must not exceed the number of months cumulative business necessity both as demands that applicants satisfy
or years of training, education and/or experience. Another commenter noted unnecessary job requirements or they be
experience defined for the SVP level the proposed rule contravened the long- able to immediately perform every
assigned to the occupation as shown in held view that ETA would not impose potential job duty, however tangential to
the O*NET. The NPRM also sought to its judgment on business by limiting an the basic occupation.
modify the current regulations by employer’s actual job requirements for a The O*NET job zones will show the
eliminating the use of business particular position. SHRM observed the SVP level assigned to the occupation.
necessity to justify requirements not current regulations, coupled with This final rule provides the job
normal for the occupation. The NPRM relevant case law, provide U.S. workers opportunity’s duties and requirements,
instead proposed that job requirements with ample protection against unless adequately documented as
other than the number of months or illegitimate job requirements. On the arising from business necessity, must be
years of training, education and/or other hand, comments by FAIR, a few those normally required for the
experience in the occupation would not unions, and SWAs were highly occupation and must not exceed the
be permitted unless it could be shown supportive of the proposal to eliminate SVP level assigned to the occupation as
that the employer employed a U.S. business necessity, and regarded the shown in the O*NET job zones. While
worker to perform the job opportunity proposal as a salutary effort to address O*NET may arguably contain broader
with the special requirements within 2 employer abuses in the program. occupational categories than the DOT,
years of the filing date of the We agree with the majority of COs have traditionally exercised their
application, or the special requirements commenters that the business necessity judgment in determining whether the
are normal to the occupation. standard should be retained in the job requirements are normally required
We received over 50 comments on the permanent labor certification program. for the occupation involved in the
proposed elimination of business For the past 25 years, we have permitted employer’s application and in applying
necessity. Most of the commenters, employers to use specialized job the SVP to specific case situations, and
including AILA and ACIP, were requirements as long as they could they will continue to make such
opposed to the proposal. The most demonstrate their importance to the judgments with O*NET. Employers
common objection was the elimination performance of the job. The should be aware that job duties and
of business necessity would hurt the administrative difficulties associated requirements other than those normal
economy because the failure to staff with implementation of the business for the occupation must be supported by
positions with qualified workers would necessity test, although problematic, do evidence of business necessity and such
prevent employers from meeting not form a sufficient basis for depriving evidence will be required in an audit.
marketplace demands and put employers of their ability to address The language in the NPRM about the
employers at a competitive disadvantage legitimate business requirements. While justification of a bachelor’s or higher
by causing them to lose out to foreign we considered trying to develop a degree has been eliminated in this final
competitors. One commenter observed middle ground between the approach in rule. The inclusion of the business

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77352 Federal Register / Vol. 69, No. 247 / Monday, December 27, 2004 / Rules and Regulations

necessity test, along with the retention environments where safety 8. Alternative Experience Requirements
of our current policies about what is considerations would support a foreign We received over 35 comments in
normally required for the job in the language requirement. response to the proposal to eliminate
United States, make these provisions the use of alternative experience
unnecessary. c. Combination Occupations
requirements as a means of qualifying
b. Foreign Language Requirement The NPRM proposed two changes to for the employer’s job opportunity. The
The NPRM proposed that a foreign the current regulations concerning vast majority of commenters were
language requirement must be combination of duties. First, it proposed opposed to the proposal. These
supported by a showing that the foreign the term ‘‘combination of occupations’’ commenters noted alternative
language was not merely for the replace ‘‘combination of duties’’ because experience and educational
convenience of the employer or its most jobs involve a combination of requirements are a necessary part of
customers, but was required based upon duties. Second, it proposed a recruitment and their elimination would
the nature of the occupation or the need combination of occupations may be prevent employers from staffing
to communicate with a large majority of justified only by a showing of previous positions in accordance with real-world
the employer’s customers or contractors. employment of a U.S. worker within 2 business practices whereby employers
The use of the business necessity years of filing and/or that workers typically interview job candidates and
standard for foreign language customarily perform the combination of evaluate their skill sets to determine
requirements in the current system occupations in the area of intended whether the candidate can perform the
produced a well-understood and employment. Proof of business job. One commenter observed today’s
generally accepted body of case law that necessity, one of three alternative bases ŕesuḿes do not list past positions, but
has been developed over 2 decades to support a combination of duties rather the skills and accomplishments of
about when and how language under current regulations, would not the individual candidate. ACIP
requirements can be used. The business justify a combination of occupations. commented that large employers
necessity standards contained in these normally use alternative experience or
We received eight comments on the educational requirements when hiring
established principles were reflected in
proposed rule on combination jobs. Two both foreign nationals and U.S. workers
the proposed rule. Since we are
commenters, FAIR and a SWA, because, in their experience, there is
retaining the business necessity
standard in the final rule we have supported the proposal. The remaining more than one possible route to gain the
modified this final rule in § 656.17(h)(2) commenters were opposed to the education and skills needed to perform
by simply providing that a foreign elimination of business necessity as a the duties of a position. A university
language cannot be included as a job basis for justifying a combination of and a high-tech company noted
requirement unless it is justified by occupations. These commenters emerging technology and cutting-edge
business necessity. maintained the proposed rule would research thrive in an interdisciplinary
We received seven comments that harm U.S. businesses by failing to give environment where individuals from
specifically addressed the proposed rule employers needed flexibility to merge seemingly different backgrounds may
on foreign language requirements. FAIR occupations in a rapidly changing occupy the same position.
and the AFL–CIO expressed their strong technological and global marketplace. Several commenters observed the
support of the proposed rule. The AILA recommended we restore an proposal seemed counter-productive to
majority of commenters (employers and employer’s ability to set forth unusual protecting the U.S. labor force. AILA
attorneys/interest groups representing requirements or combinations of duties and other commenters noted by
employers), while generally favoring the via attestation subject to later eliminating alternative requirements,
proposal, suggested we expand the rule verification of business necessity in the DOL was actually limiting the pool of
to include other possible business course of an audit or investigation. U.S. workers who may qualify for a
justifications for foreign language Another commenter noted the proposed position. A few commenters, including
requirements. The most frequently cited rule would hurt small employers AILA, thought it unfair that the
example was the need to communicate because many small companies expect proposed rule would prohibit employers
with co-workers or subordinates. AILA, their employees to ‘‘multi-task,’’ and the from considering any alternative
for example, strongly recommended we smaller the company the more likely an experience possessed by foreign
include the employer’s own employees employee would perform a combination nationals, while at the same time force
as a potential class of individuals of duties. employers to consider an alternate array
necessitating a language requirement, of experience and education possessed
noting our recognition of the linguistic After careful evaluation, we have by U.S. workers, thereby ignoring the
difficulties of an employer’s contractors, determined these concerns are reality of the international job market.
but not of the employer’s own staff, addressed by our decision to retain Several commenters, including AILA,
appeared inexplicable. After careful business necessity in the permanent a high-tech employer, and a few
consideration, we have concluded these labor certification program. Therefore, universities, disagreed with DOL’s
comments have merit. Lastly, we think this final rule continues the current statement in the NPRM that alternative
there are working environments where standard in § 656.17(h)(3). Combination requirements are a phenomenon of
safety considerations would support a occupations can be justified in the same lesser-skilled positions. Other
foreign language requirement. In some way as is presently required for a commenters stated the NPRM was
industries and occupations language combination of duties, i.e., the employer drawn more broadly than necessary to
impediments could contribute to must prove it has normally employed address DOL’s concerns about
injuries to workers. Accordingly, this persons for that combination and/or individuals circumventing the Other
final rule adds the need to communicate workers customarily perform the Worker visa quota limits. These
with co-workers or subordinates to the combination in the area of intended commenters suggested DOL deal
ways for justifying business necessity employment and/or the combination job directly with the Other Worker problem
for a foreign language requirement. opportunity is based upon a business by examining whether an alternative
Lastly, we think there are working necessity. requirement was bona fide, reasonable,

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Federal Register / Vol. 69, No. 247 / Monday, December 27, 2004 / Rules and Regulations 77353

and/or normal for the occupation and Kellogg, BALCA indicated that rule would in particular penalize large
not by eliminating alternatives alternative requirements and primary medical research centers.
altogether. requirements must be substantially AILA commented that our rationale
An immigration law firm pointed out equivalent to each other with respect to for the proposed rule lacked supporting
the issue of alternative requirements whether the applicant can perform the statistics, citations, or evidence,
was addressed by BALCA in the Matter proposed job duties in a reasonable empirical or otherwise. ACIP
of Francis Kellogg, (94–INA–465, manner. There may also be other commented that DOL’s justification
February 2, 1998) (en banc). Kellogg equally suitable combinations of undermined the economic viability of
adopted a reasonable solution that education, training or experience which American employers who provide the
required the employer to accept any and could qualify an applicant to perform jobs. These commenters and others
all experience that would reasonably the job duties in a reasonable manner, recommended the longstanding
prepare an applicant for the position but which the employer has not listed exceptions to the current rule be
and not permit an employer to accept on the application as acceptable retained. In particular, AILA
only the specific related experience the alternatives. Therefore, even when the commented that BALCA in Delitizer
alien might have, without regard to employer’s alternative requirements are Corp. of Newton (88–INA–482, May 9,
whether the other experience would substantially equivalent but the alien 1990)(en banc) already established a
prepare the applicant for the position in does not meet the primary job mechanism to protect U.S. workers in
question. This commenter observed requirements and only potentially this situation. In Delitizer, BALCA listed
DOL has never implemented the qualifies for the job by virtue of the a number of factors that could be
rationale expressed by BALCA in employer’s alternative requirements, the analyzed, such as the relative job duties
Kellogg on a nationwide basis. alternative requirements will be and supervisory responsibilities, job
Six commenters supported the considered unlawfully tailored to the requirements, and the positions of the
elimination of the alternate experience alien’s qualifications unless the jobs in the employer’s hierarchy, to
requirement. Several SWAs stated that employer has indicated that applicants determine whether the alien’s
alternative experience requirements with any suitable combination of experience with the employer should be
enabled foreign workers to easily qualify education, training or experience are allowed. Some commenters contended
for available job openings and should be acceptable. that experience gained on the job should
eliminated. FAIR commented that be allowed when it is infeasible for the
alternative requirements have almost 9. Actual Minimum Requirements employer to train a new worker.
always been used by employers to Under the proposed rule, employers Other commenters objected to the
disguise what are really unskilled jobs would be prohibited without exception inclusion of contract employees within
as skilled positions in order to promote from requiring any experience gained by the scope of the proposed rule. One
alien relatives and cronies ahead of law- the alien while working for the commenter observed that many U.S.
abiding U.S. applicants. The AFL–CIO employer in any capacity, including companies hire start-up contract
said alternative requirements allowed working as a contract employee or for an employees whom they train and who
employers to tailor job requirements to overseas company. grow with the business. One commenter
the qualifications and experience of the DOL received over 40 comments on stated the inclusion of contract
foreign worker rather than the the proposal to prohibit any experience employees was difficult to understand
requirements of the job. gained with the employer. The vast because contracting employers who
We are persuaded by the majority of majority of commenters, including AILA place contract employees at another
commenters that there may be legitimate and ACIP, were opposed to the firm are, by definition, separate
instances when alternative job proposed rule. The objection most employers.
requirements, including experience in a frequently made was the proposed rule Relatively few commenters supported
related occupation, can and should be would significantly harm American the proposed change. These
permitted in the permanent labor businesses and have a chilling effect commenters, including FAIR, the AFL–
certification process. However, we do upon U.S. workers and the economy. CIO, and several SWAs, complained
not agree that proposed § 656.17(g)(4)’s These commenters believed the that U.S. workers had been
limitations on what an employer may proposed rule would force talented disadvantaged by the current
require as an alternative experience foreign nationals to change employment regulations because employers are not
requirement must be consistent with the because they would be unable to obtain required to recruit for the positions until
definition of related occupation in permanent residence through their long- after the aliens received the full benefit
§ 656.17(j) of the NPRM, because these term employer. Losing these employees of employer-provided training and
two sections have distinctly different after a substantial investment would experience.
purposes. Section 656.17(j), now (k) undermine the employer’s competitive A few commenters proposed DOL
addresses the qualifications of U.S. edge because the employees would take a middle position and retain in
workers laid off by the employer- likely be lost to competing businesses. some form the exceptions contained in
applicant. Section 656.17(g), now (h), on Several commenters specifically stated the current regulations. One of these
the other hand, addresses the the proposed rule inadvertently commenters suggested experience
qualifications of the alien beneficiary encourages a system in which only gained on the job should be allowed if
and is designed to prevent an employer entry level or new employees could be the alien obtained the experience in a
from allowing the alien beneficiary to sponsored for labor certification. One materially different position. Another
benefit from training and/or experience university commented the proposal commenter suggested an exception be
opportunities not offered to U.S. would eliminate the ability of colleges made for businesses with 100 or more
workers. and universities to retain exemplary employees.
Under § 656.17(h)(4) of this final rule, post-docs, junior researchers, faculty
an employer may specify alternative members, and other highly skilled a. Dissimilar Jobs
requirements provided the alternative employees who would end up leaving We have concluded that some
requirements meet the criteria set forth the universities for jobs in industry. modification to the proposed rule
by BALCA in the Kellogg case. In Another commenter stated the proposed should be made to accommodate the

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77354 Federal Register / Vol. 69, No. 247 / Monday, December 27, 2004 / Rules and Regulations

legitimate interests of the business change as harsh and inflexible. Other 10. Layoffs by the Employer
community. The inclusion of exceptions commenters pointed out that the broad The proposed rule provided that, if
to the ban on using experience gained prohibition against experience obtained there has been a layoff by the employer-
on the job in the 1977 regulations overseas would have a wide-ranging applicant in the area of intended
reflected our view that employers filing negative economic and competitive employment within 6 months of filing
for labor certification may very well be impact. These commenters asserted the application, either in the occupation
able to show appropriate instances many large companies have a global for which certification is sought or in a
when the prohibition should not be workforce and move talent and related occupation, the employer must
applied. We agree with the commenters personnel as necessary, and the document it has notified and considered
that if the jobs are truly distinct, U.S. proposed rule would shut U.S. doors to all potentially qualified laid-off U.S.
workers are not denied training global talent by precluding promotion workers of the job opportunity involved
opportunities unfairly gained by foreign from within the organization. One in the application and the results of the
nationals with the same employer. commenter claimed excluding notification.
Foreign workers, including those experience gained by the alien while For the purposes of § 656.17(j) in the
working as contractors, are not being working for an affiliate company abroad NPRM (§ 656.17(k) of this final rule), a
trained on the job when they are gaining would actually harm U.S. workers by ‘‘related occupation’’ is any occupation
experience in a truly different job. forcing multinational corporations to that requires workers to perform a
However, in our experience, the specific consolidate research, development, and majority of the essential duties involved
Delitizer criteria are unnecessarily manufacturing jobs overseas, instead of in the occupation for which certification
complex and in practice difficult to transferring these positions to the U.S. is sought.
administer. With regard to the prohibition of Several commenters had concerns
In order to reconcile these competing experience gained with an acquired about proposed § 656.17(j) and
considerations, this final rule in company, a commenter noted in most discussed issues such as industry and
§ 656.17(i) allows the employer to show instances there is no relationship statewide layoffs, CO’s knowledge of the
the alien was hired in or contracted to between the acquiring and acquired layoffs, laid off U.S. workers, contract
work in a different job for the employer, company; consequently, the alien has employees, and the definitions of
but the employer must prove the job in no expectation that he or she would ‘‘related occupation,’’ ‘‘similar jobs,’’
which the alien gained the experience is have greater qualifications for the ‘‘contract employees,’’ and ‘‘layoffs.’’
not substantially comparable to the job eventual job than an employee working
for which certification is being sought. anywhere else. This commenter also a. Industry and Statewide Layoffs
A ‘‘substantially comparable’’ job or observed the proposed rule would Two commenters addressed industry
position means a job or position impede business expansion and that one or statewide layoffs. A SWA prevailing
requiring performance of the same job of the most valuable tangible assets of a wage specialist stated Item 10 of Part IV
duties more than 50 percent of the time. business acquisition is the talent and (Recruitment Efforts Information) of the
This requirement can be documented by creative energy of the employees in the ETA Form 9089 implies the layoffs were
furnishing position descriptions, the acquired company. One SWA expressed only the employer’s layoffs. One
percentage of time spent on the various concern about the administration of the commenter questioned how the CO
duties, organization charts, and payroll proposal and questioned how DOL would monitor layoffs by other
records. would be able to track and/or separate employers as well as the employer-
the different legal relationships applicant’s layoffs.
b. Infeasibility to Train (predecessor organizations, successors Under this final rule, the employer-
With respect to the second exception, in interest, etc.) enumerated in the applicant is required to document it has
we note the ‘‘infeasibility to train’’ proposed rule. notified and considered only those
argument is rarely claimed in practice. There were a few commenters that workers it laid off, not those workers
Consequently, we have concluded the supported the proposed change. FAIR laid off by other employers. The
reinstatement of this exception in this commented it is entirely appropriate for employer must attest on the application
final rule will have little programmatic U.S workers to ‘‘pierce the corporate form to whether it has laid off
or operational impact, would veil’’ in the contemporary workplace employees in the occupation involved
acknowledge the legitimate interests of and commended DOL for adopting the in the application in the past 6 months.
the business community, and would not Haden standard, which bars permanent We do not believe it is reasonable to
be inconsistent with our longstanding certification where a position requires place such requirements on employer-
interpretation of our statutory mandate. proprietary training or knowledge that applicants with respect to workers laid
only a foreign employee of the employer off by other employers in the area of
c. Definition of Employer possesses. intended employment.
Concerning the definition of After reviewing the comments, we It should be noted that under
‘‘employer,’’ the proposed rule adopted agree the proposed definition of § 656.21, if the employer is directed to
the position taken by BALCA in Matter employer was too broad. Consequently, complete supervised recruitment, the
of Haden, Inc. (88–INA–245, August 30, this final rule in § 656.17(i)(5)(i) has CO may take notice of industry layoffs
1998). We proposed that employer be been simplified to provide an employer in directing the employer to make
defined more broadly to include is ‘‘an entity with the same Federal additional recruitment efforts; however,
predecessor organizations, successors in Employer Identification Number (FEIN), the petitioning employer is not required
interest, a parent, branch or subsidiary, provided it meets the definition of an to make attestations about layoffs by
or affiliate, whether located in the U.S. employer at § 656.3.’’ The simpler other employers in the industry or area
or another country. The comments that definition will be easier to administer of intended employment. This is
spoke to this issue were and strikes an appropriate balance consistent with our past practices.
overwhelmingly negative, particularly between the legitimate interests of the
with regard to DOL’s intention to U.S. business community and DOL’s b. Knowledge of Layoffs
include overseas employment. One statutory mandate to protect U.S. One commenter questioned how the
commenter characterized the proposed workers. CO would know whether there were

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layoffs if the employer does not inform We are not adding a provision to this NPRM), employers may be able to
the CO directly. We note the employer final rule requiring consulting firms to specify experience in a related
must attest on the application whether document that they are not referring occupation as qualifying for the job
it has laid off workers in the occupation workers to a place of employment at opportunity. See our discussion of
in the 6 months immediately prior to which U.S. workers have been laid off alternate experience requirements and
filing the application. Further, our from similar positions. Although this actual minimum requirements above.
program experience has shown that COs suggestion has merit, we have With regard to the definition of
are able to determine whether an concluded such a marked departure related occupation, some commenters
employer has laid off workers by relying from current policy and practice should erroneously believed DOL would deem
on various sources of information such be the subject of another NPRM before any laid-off employee in a related
as Worker Adjustment and Retraining it is implemented. We will consider it occupation, who can perform the
Notification (WARN) notices, in future rulemaking to amend the majority of the job duties, to be
newspaper articles, and internet search permanent labor certification program. qualified. The regulation does not state
tools. It should be noted if the employer- workers in a related occupation are
applicant is a consulting firm, it, as qualified for the job opportunity, only
c. Laid-off U.S. Workers must any other employer, must attest to the employer must notify those workers
One commenter recommended the any layoffs of its staff in the sponsored and consider whether they are qualified.
employer be required to document that occupation in the 6 months prior to Similar to the determinations that
all of its laid-off workers (who are filing. We also note contract staff of the have to be made under §§ 656.17(g) and
actively seeking work) are employed. employer-applicant are not employees, 656.24(a)(2)(i), a U.S. worker will be
The commenter indicated the minimum and need not be included in any deemed qualified only if the worker, by
standard for protection of U.S. workers assessment of qualifications of laid off education, training, experience, or a
would be to require the employer to U.S. workers. combination thereof, is able to perform
document that all of its laid-off U.S. in the normally accepted manner the
workers (who are actively seeking work) e. Definition of Related Occupation
duties involved in the occupation as
are now employed and working at a One commenter inquired whether customarily performed by other U.S.
wage that is equal to or higher than the § 656.17(j)(2)’s definition of ‘‘related workers similarly employed; or if the
prevailing wage rate on the ETA Form occupation’’ was inconsistent with U.S. worker can acquire the skills
9089. § 656.17(h)’s ban on experience gained necessary to perform the duties
The final rule requires the employer with the employer, and suggested DOL involved in the occupation during a
to document only that it notified and redefine related occupation to resolve reasonable period of on-the-job training.
considered potentially qualified U.S. this inconsistency. If audited, an employer may be required
workers. Employers must document AILA objected to the proposed to document the lawful job-related
they offered the position to those laid- definition of related occupation. reasons for not hiring U.S. workers laid
off workers who are able, willing, and Because the definition includes any off in a related occupation for the job
qualified for the job opportunity and the occupation that requires workers to opportunity for which certification is
results of their consideration of such perform a ‘‘majority of the essential sought.
workers. duties,’’ AILA questioned why an
Employers are not required to employer must consider a worker f. Definition of Layoff
document that all of their laid-off qualified if he or she can only perform One commenter suggested DOL
employees are actively seeking work, or a majority of essential duties of the expand the term ‘‘layoff’’ to include
have obtained employment at a wage position offered. AILA contended many layoff or reduction-in-force or
that is equal to or higher than the of the essential skills may constitute less downsizing. The commenter warned
prevailing wage on the ETA Form 9089. than half of the job duties, but are employers might attest that the term
It is not feasible to require an employer required for performing the job. AILA layoff does not apply to their personnel
to document that its laid-off workers are stated DOL’s new standard for recruiting actions, for example, if workers
currently employed and the wages at U.S. workers, including laid off workers, voluntarily resign and the company
which the workers are currently renders meaningless the longstanding reorganizes so the job no longer exists.
employed. For example, laid-off staff principle that the employer use We have modified this final rule to
may be unreachable, and may be minimum entry requirements on a labor clearly define, for purposes of
unwilling to cooperate with former certification. § 656.17(k), a layoff is any involuntary
employers seeking information about We do not consider employment in a separation of one or more workers
their current employment or salary. different but related occupation, as without cause or prejudice. This
defined in § 656.17(k), to be inconsistent definition includes, but is not limited
d. Contract Workers with § 656.17(i)’s limits on experience to, personnel actions characterized by
A commenter noted the proposed rule gained with the petitioning employer, as an employer as reductions-in-force,
provides an opportunity to require that, these two sections have distinctly restructuring, or downsizing.
when a consulting firm submits a different purposes. Section 656.17(k)
permanent alien labor application, the addresses the qualifications of U.S. 11. Alien Influence and Control Over
sponsored workers can not be sent to workers laid off by the employer- the Job Opportunity
firms where they would replace U.S. applicant. Section 656.17(i), on the The proposed rule provided that, if
workers. The commenter suggested DOL other hand, addresses the qualifications the employer is a closely held
add a section to the rule requiring of the alien beneficiary and is designed corporation or partnership in which the
consulting firms to document they are to prevent an employer from providing alien has an ownership interest, or if
not referring workers to a place of the alien beneficiary with training there is a familial relationship between
employment at which U.S. workers have opportunities not offered to U.S. the stockholders, corporate officers,
been laid off from positions similar to workers. In addition, we note due to the incorporators, or partners and the alien,
the position the foreign worker will changes made to § 656.17(h) and (i) of the employer must furnish
occupy. this final rule (§ 656.17(g) and (h) of the documentation that would allow the CO

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to determine whether the job has been addresses the nonexistent or marginal with preparation and submission of
and is clearly open to U.S. workers. employer. This section, the commenter multiple applications—identical except
recommended, should mirror General for the details concerning the alien
a. Number of Employees
Administrative Letter No. 1–97, dated beneficiary—and burdens DOL with
Two commenters recommended October 1, 1996, Subject: Measures for review of such duplicative applications.
adding an attestation on the ETA Form Increasing Efficiency in the Permanent A multiple-beneficiary application
9089 regarding the number of Labor Certification Process (GAL 1–97), process would reduce the burden on
employees. The commenters noted if the and state jobs that did not exist before both the employer and DOL without
alien is one of a few employees, the job the alien was offered the position may compromising the protection of U.S.
may not be open to U.S. workers. be considered not truly open to U.S. workers afforded under the current
We agree with the comments workers unless the employer can clearly system.
addressing the possible influence of the demonstrate a change in business AILA recommended DOL consider
alien as one of a small number of operation caused the position to be establishing a procedure under which a
employees, and we have added the created after the alien was hired. single ETA form could be used for a
Modularsesa Modular Container As addressed in our discussion of the number of openings for the same
Systems’ (89–INA–228, July 16, 1991) employer’s ability to pay above, we position. The employer would designate
(en banc) criterion of whether the alien believe the employer’s obligation to the number of openings and the number
is one of a small number of employees document and attest that the job is open of alien beneficiaries on the ETA Form
to the regulation at § 656.17(l) to U.S. workers provides the CO with 9089, and would also submit
(§ 656.17(k) in the NPRM–67 FR at sufficient basis to inquire whether an information for each alien beneficiary.
30474). This factor was listed in the employer is able to pay the offered DOL would adjudicate the filing as one
preamble to the proposed rule, but was salary and to place the alien on the case, thereby increasing efficiency and
not included in the regulation at payroll and to deny the application on avoiding inconsistent results.
§ 656.17(l). We have also added a the basis that the job is not truly open Creating a new category of application
question to the ETA Form 9089 that asks to U.S. workers if the employer does not would conflict with our goal of
for the number of employees in the area furnish the appropriate documentation. streamlining processing. This would
of intended employment. We also noted DHS will assess the create more duplication at DOL, and
employer’s financial status as part of the would require development of new
b. Familial Relationship Between Alien regulations, criteria, and means of
immigrant visa process, and we do not
and Employer reviewing such applications.
see a need to request duplicative
AILA commended DOL for the information from the employer. Further, However, the need for a multiple
proposed rule’s limitations regarding a we note GAL 1–97, Change 1, dated May beneficiary application is largely
beneficiary’s ownership interest in the 11, 1999, does not state jobs that did not obviated by the option provided
company or familial relationship with exist before the alien was offered the employers by the e-filing process that
the stockholders or the owners. AILA position may be considered not truly permits employers who frequently file
noted, however, a familial relationship open to U.S. workers. We have permanent labor certification
alone should not invalidate the job determined such a provision is not applications to set up secure files within
opportunity, and suggested the realistic with respect to the the ETA electronic filing system
regulations allow the employer to requirements and operations of newly containing information common to any
provide evidence on the issue of undue formed business entities. Consequently, permanent application they may wish to
influence and bona fide job opportunity we have not included the language file. As explained above, under this
beyond the topics listed. proposed by the commenter in this final option, each time an employer files an
In determining whether the job is rule. ETA Form 9089, the information
subject to the alien’s influence and common to all of its applications, e.g.
control, we will evaluate the totality of 12. Multiple-Beneficiary and National employer name and address, etc. will be
the employer’s circumstances, using the Applications entered automatically, and the employer
Modular Container Systems criteria Under both the current and proposed will have to enter only the data specific
listed in the preamble to the proposed rules, a separate application must be to the application at hand.
rule (see 67 FR at 30474). No single filed for each alien beneficiary. Two
b. National Applications
factor, such as a familial relationship commenters suggested changing the
between the alien and the employer or scope of the applications. ACIP and AILA recommended DOL consider
the size of the employer, shall be AILA suggested DOL establish a establishing a procedure for national
controlling. procedure under which one application labor filings. We have concluded it
could be used for multiple beneficiaries. would be inappropriate to authorize
c. Ability To Pay the Salary for the national applications. Even if the
AILA also suggested DOL establish a
Position suggestion could be considered a logical
system for national applications.
One commenter contended questions outgrowth of the proposed rule, the
about the employer’s ability to pay a. Multiple-Beneficiary Applications concept of a national application
should not be eliminated. The ACIP believed employers with appears to conflict with several existing
commenter stated in cases where the job multiple job openings within the same sections of the regulations. While
itself is in question (e.g., there may not occupational classification should be workers in a given occupation may be
be a real company or the employer has allowed to file a single application for unavailable in much of the U.S., there
been in business for years without any multiple positions with unnamed alien often are local or regional areas in
employees), the question of the ability beneficiaries. Under the current system, which qualified workers are available in
to pay the salary for the labor the employer submits individual that occupation. A national certification
certification position might become applications for each alien beneficiary, could result in the placement of an alien
significant in reviewing the case. The but often uses exactly the same evidence worker in a geographic area that has
commenter suggested a section be added to support each of the applications. The many available workers in the
to the proposed rule that specifically current process burdens the employers sponsored occupation. Consequently, a

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national certification could adversely provided, as a limited exception to the teachers, we have reviewed the statute,
affect the wages and working conditions generally applicable rule, that in the the legislative history, and the
of U.S. workers in the area of actual case of aliens who are members of the Mastroyanis decision, and have
employment. Additionally, we note teaching profession or of exceptional determined not to apply the court’s
certifying national applications using a ability in the sciences or arts, the U.S. language in Federal court districts
national average wage could have an worker must be equally qualified with outside the District of Alaska. As
adverse effect on the wages of U.S. respect to the alien. Thus, we cannot indicated above, the equally qualified
workers in the occupation, as this wage expand the scope of § 656.18 to include language was added to Section
would be lower than the local wage rate high-level and research positions within 212(a)(14) (now Section 212(a)(5)(A)(i))
in many areas of employment. Finally, private companies. As noted above in by the INA amendments of 1976. The
occupations for which there is a our discussion of Schedule A, aliens of Judiciary Committee of the House of
national shortage may be appropriately exceptional ability in the sciences or Representatives stated on passage of the
considered for inclusion on Schedule A. arts are included on Schedule A. bill that:
See our discussion of Schedule A above. b. Inclusion of Primary and Secondary The committee believes the Department of
L. Optional Special Recruitment and School Teachers Labor has impeded the efforts of colleges and
universities to acquire outstanding educators
Documentation Procedures for College A few of the commenters urged DOL or faculty members who possess specialized
and University Teachers to expand the category of college and knowledge or a unique combination of
The only modification made to the university teachers to include primary administrative and teaching skills. As a
proposed regulations for the optional and secondary school teachers. These result, the legislation included an
commenters cited the growing shortage amendment to section 212(a)(14) [now
recruitment and documentation 212(a)(5)(A)], which required the Secretary of
procedures for college and university of primary and secondary school
Labor to first determine that ‘‘equally
teachers in this final rule was to revise teachers in both public and private qualified’’ American workers are available in
§ 656.18(a) to reflect the elimination of institutions as more teachers reach order to deny a labor certification for
the proposed Prevailing Wage retirement, the difficulty in attracting members of the teaching profession * * *.
Determination Request form and certain and retaining qualified teachers, and the (See H. Rep. No. 1553, 94th Cong., 2d Sess.
elements being incorporated back into need for the best and brightest teachers 11 (Sept. 15, 1976))
the Application for Permanent Labor at the pre-college level. In addition, Congressman Eilberg
Certification. A law firm contended the failure to stated during the debate on the
Other commenters recommended the include primary and secondary teachers amendments to the INA the new
expansion of the optional recruitment in the same category as college and language was intended to apply to
university teachers was unlawful. Citing teachers only at the college and
procedures for college and university
the INA provisions on certification of university level.
teachers to include additional
U.S. workers, this commenter
occupations. These recommendations Another provision contained in this
maintained the Secretary of Labor must
are discussed below. legislation would address the serious
certify the availability of ‘‘equally
problem that has confronted a large number
1. Expansion of the Optional qualified’’ rather than ‘‘qualified’’ U.S. of colleges and universities in this country.
Recruitment Procedures To Include workers in the case of an alien who is That provision—contained in an amendment
Additional Occupations a ‘‘member of the teaching profession,’’ to the labor certification section of the
a. Inclusion of High-Level Positions and noted the term ‘‘profession’’ is Immigration and Nationality Act (section
defined in the INA to include 212(a)(14))—would require the Secretary of
Some commenters urged DOL to ‘‘* * *teachers in elementary or Labor to determine that ‘‘equally qualified’’
expand the scope of § 656.18 beyond secondary schools, colleges, academies, American teachers are available in order to
college and university teaching or seminaries.’’ The commenter deny a labor certification.
positions. A large employer noted the maintained DOL must apply the same (See 122 Cong. Rec., Part 126, p.
proposed regulation continues the certification requirements for both 33633 (Sept. 29, 1976))
dichotomy between labor certifications college and university teachers and for Reasonably, contemporaneously and
for colleges and universities and labor elementary and secondary teachers. consistent with this stated
certifications for other employers, under The commenter cited a BALCA Congressional intent on January 18,
which universities and colleges can decision (In the Matter of Dearborn 1977, we promulgated regulations to
select the best qualified candidate while Public School on Behalf of Anthony implement the amendment (42 FR 3440
other employers must select a Bumbaca, (91–INA–222, December 7, (January 18, 1977)). In the preamble to
‘‘minimally qualified’’ candidate. This 1993) to support the argument there is that rule, we stated we were responding
commenter was of the opinion it was no a conflict between the DOL regulations to comments on the proposed rule
more important in academia than in and the plain language of the statute. submitted by the House Committee on
U.S. industry to pick the best-qualified According to the commenter, BALCA Immigration, Citizenship, and
candidate. The commenter suggested cited an unpublished decision of the International Law, which commented
DOL either eliminate the special United States District Court for Alaska that the provision with respect to
procedures for academia, or expand (Mastroyanis v. U.S. Department of teachers was intended by Congress to
§ 656.18 to include ‘‘high-level and Labor, No. A 98–089 Civil (D.C. AK. apply only to educators at the college
research positions’’ within private May 5, 1989)), which found DOL’s and university level, not to all members
companies. regulations limiting the application of of the teaching profession. This
We cannot eliminate the special the ‘‘equally qualified’’ standard to interpretation of the equally qualified
procedures for academia or expand college and university teachers and not provision, which is in the current
§ 656.18 to include high level and applying it to a secondary school regulations and the proposed rule, is
research positions as suggested by the teacher were in conflict with the plain unchanged for purposes of this final
commenter. The current regulations language of the INA. rule because it is more in accord with
implement the October 20, 1976 With respect to expanding § 656.18 to Congressional intent than the above
amendments to the INA, which include primary and secondary comments and better serves to protect

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77358 Federal Register / Vol. 69, No. 247 / Monday, December 27, 2004 / Rules and Regulations

U.S. workers from adverse effects than information they feel appropriate about recommended clarifications or changes
would an expansion of the category to job offers for live-in domestic workers. to the proposal, including clarification
teaching jobs at the elementary and As indicated in our discussion of the about how audits would be targeted,
secondary school levels. audit letter process below, we have extension of the 21 day period for reply
retained the flexibility to adjust auditing to an audit letter, and inclusion of
M. Live-in Household Domestic Service
emphasis, as necessary, under this final specific requirements as to how the
rule. audit letters should be delivered to the
Most of the documentation applicants. Several commenters also
requirements for live-in household 3. One (1) Year Experience Requirement
discussed the consequences of failure to
domestic service workers are unchanged Some commenters suggested respond to an audit letter, with most
from the requirements contained in the maintaining the requirement in the opposing a presumption of a material
current regulation. However, certain current regulations for live-in domestic misrepresentation.
documentation required on the ETA 750 workers to have at least 1 year of work
form will no longer be collected during experience with someone other than the 1. Elimination of the Notice of Findings
the application process; instead the employer-applicant. One commenter and Contents of the Audit Letter
regulations provide that employers will observed, prior to this requirement, AILA stated the proposed audit
be required to supply this applications for alien employment system would leave employers with no
documentation if their labor certification were filed on behalf of reasonable procedure through which
certification applications are audited or professionals (i.e., doctors, lawyers, etc.) they can obtain help in correcting
as otherwise requested by a CO. with no experience in domestic service deficiencies or receive guidance on
Employers will be required to maintain occupations as a quick way to get into what the CO views the deficiency to be.
all required documentation and, in the the U.S. The absence of a NOF process would in
event of an audit or CO request, the We agree with the commenters who particular hurt employers not
employer will be required to submit this proposed live-in domestic workers represented by counsel. Such employers
documentation to DOL, as well as any should have at least 1 year of paid may have their applications denied
other documentation required in order experience in the occupation. For more because of a single mistake. AILA urged
to complete the review. than 25 years, we have required proof of DOL to consider either restoring the
1 year of full-time, paid experience for NOF or expanding the audit process to
1. Modifications to the Proposed Rule live-in domestic workers to ensure the allow an audit to be used to identify and
We have made two modifications to alien knows the demands unique to resolve labor certification mistakes and
the proposed rule in this final rule. household domestic service work, has deficiencies.
First, we have made a technical change some attachment to the occupation, and AILA further asserted a standardized,
to the regulations at § 656.19(a) to will likely continue working in this computer-generated audit letter would
clarify, consistent with the general occupation after arrival in the U.S. Our be essentially useless for the employer,
instructions at § 656.10(a)(1), that experience has shown persons not because it would not tell the employer
applications for live-in household previously employed in the occupation what documentation is truly needed or
domestic service workers must be filed for a reasonable length of time generally indicate to the employer if there was a
under the basic process at § 656.17. do not remain in that employment in particular problem with the application
Second, we have changed the language the U.S. Therefore, we have retained that needed to be addressed by the
in § 656.19(b)(1)(iv) of the proposed this requirement in the final rule. This submission of additional evidence.
regulation from ‘‘whether or not’’ a requirement does not correlate to the One commenter stated unless the
private room and board will be provided minimum training and/or experience audit letters are drafted on an individual
to ‘‘that’’ a private room and board will required to perform the job and should basis and do not rely on boilerplate
be provided, to eliminate an apparent not be shown as a requirement for the language, they qualify as data
inconsistency with § 656.19(b)(2)(ix), job opportunity. collections under the Paperwork
which requires a statement that the Reduction Act and will require OMB
employer will provide a private room N. Audit Letters clearance. This would be true, according
and board at no cost to the worker. We proposed to eliminate the current to the commenter, both for a list of
procedure of issuing Notices of Findings standard templates or situations in
2. Oversight and Audit of Domestic (NOFs). Section 656.20 of the proposed which the regional office drafts its own
Service Worker Applications rule provides for the issuance of audit set of templates, as long as the data
We received very few comments on letters, which will be primarily collector is used more than 10 times in
the issue of live-in household domestic standardized computer-generated a year.
service workers under § 656.19. One documents. This section also provides Another commenter suggested
commenter stressed the need for that the CO’s review of a labor changing the text of the proposed
comprehensive auditing of this category certification application may lead to an regulation to read: ‘‘Request
of alien workers. Another commenter audit, or other request by the CO, and supplemental information and/or
recommended retaining the SWAs to certain applications also may be documentation; and/or require the
manage the application process because selected for audit for quality control employer to conduct recruitment under
their staff could be fully dedicated to purposes. If an application is selected * * *’’ (emphasis added) to ensure the
managing these applications promptly for either reason, the CO will issue an CO can both request additional
and reducing the current backlog. We audit letter. documentation and simultaneously
anticipate applications submitted on We received approximately 50 require the employer to conduct
behalf of domestic service workers will comments on the proposed audit letter supervised recruitment.
be carefully reviewed at ETA’s procedure from SWAs, attorneys, We believe the system outlined in this
application processing centers. While academic employers, and other final rule is more transparent and user-
SWAs are no longer involved in the organizations. Only one commenter friendly than the current process. The
processing of applications, the SWAs suggested retaining the existing NOF regulations indicate what
are always free to provide any procedure. Most of the commenters documentation employers are required

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to assemble, maintain, and submit to how to avoid audit triggers by checking change them over time to reflect what
respond to an audit letter. (Also see 67 a ‘‘safe’’ pattern of responses, and thus we learn through our administration of
FR at 30466 and 30475). We believe a will manipulate the computer-scanned the program.
prudent employer would gather the review process. Another commenter
3. Sending and Responding to the Audit
documentation before filing the stated employers, attorneys, or their
application and have it available in consultants will soon learn to make
anticipation of a possible audit. Further, entries on the application that will pass Some commenters supported the
employers will be able to contact DOL the scrutiny of the audit process. proposed 21 day time limit for
if they have questions about the audit Some commenters suggested specific applicants to produce documentation.
letter. It should be considerably easier audit criteria. One commenter suggested One commenter stated anyone who had
for employers to prepare an acceptable that 100 percent of applications prepared for the application would be
response to an audit letter than to rebut pertaining to live-in household able to produce proof, but that 21 days
a NOF. domestic service workers should be was not enough time to assemble false
An audit letter will not be a ‘‘fishing audited, to avoid worker abuse. The documentation.
expedition’’ as characterized by AILA. AFL–CIO suggested a number of Other commenters were concerned
We will only request information triggers. that audit letters would be delayed in
necessary to make a determination on a Two commenters were concerned that the postal system. AILA stated because
specific case or to monitor the system a job already filled by the alien DOL typically sends its decisions by
effectively. Not all audit letters will beneficiary would be considered U.S. mail, they may take from 3 to 10
request the same amount of information encumbered, and this factor would be days to arrive at the employer’s or
from employers. Some audit letters will important, and perhaps controlling, in attorney’s office. Two academic
be directed toward specific deficiencies prompting an audit. Another commenter commenters stated the audit letter
in the employer’s application. Others stated this would create a particular should be sent as quickly as possible by
will be issued for general quality control burden for academic employers. fax or e-mail in addition to U.S. mail.
purposes. Both types of audits are We believe making the process Other commenters urged the letters be
necessary to maintain the integrity of predictable would defeat the purpose of sent by certified mail, not standard U.S.
the labor certification system. the audits. Further, we want to retain mail, with one claiming a confirmed
With respect to one commenter’s the flexibility to change audit criteria, as delivery requirement is not an
contention that the audit letters will needed, to focus on certain occupations unreasonable burden to place on DOL.
require OMB clearance, we have or industries when information leads us To account for possible delays in mail
concluded the audit letters to be used to believe program abuse may be delivery, and for other delays caused by
under this final rule will be within the occurring in those areas. For these circumstances beyond the control of the
scope of 5 CFR 1320.4(a)(2) and reasons, we are not including audit employer, we have extended the
1320.4(c), which exclude information criteria in this final rule. response time to 30 days. Employers’
collected pursuant to an audit from a The AFL–CIO made a number of responses must be sent within the 30-
‘‘collection of information’’ as defined at suggestions for criteria to use in day time limit, but need not be received
5 CFR 1320.3(c). Because the audit selecting applications for audit, such as by DOL by that date. As stated in the
letters are not considered a collection of a history of unfair labor practices, preamble to the proposed rule, the
information, they do not require OMB workforce composition, or, layoffs in the employer is expected to have assembled
clearance. past 6 months. Currently, when we the documentation required before filing
One commenter suggested changing become aware of such issues, they are the application. None of the
the regulatory language to ensure the CO considered in determining whether to commenters stated this expectation is
can request supplemental information issue a NOF. Similarly, under the new unreasonable.
and simultaneously require supervised system, if we become aware of similar One commenter stated some records
recruitment. No change is warranted issues, they will be considered in may be purged in the state systems after
because a determination as to whether determining whether to issue a short period of time, such as 30 or 60
supervised recruitment is required individualized audit letters. It should days, making it impossible to retrieve
would not be made until the initial also be noted employers are required to information by the time an audit is
required documentation that the indicate on the application form requested.
employer must submit in response to whether there is a strike, lockout, or The Application for Permanent
the audit letter is received and work stoppage in the course of a labor Employment Certification requires the
reviewed. dispute in the occupation in which the employer to provide the start and end
alien beneficiary would be employed at date of the job order on the application
2. Criteria for Audits the place of employment. Regarding form to document the job order has been
Some commenters stated DOL should encumbered positions, the fact the job placed. Gathering additional
establish and publish criteria for when for which the application is filed is information on the job order from the
audit letters would be issued. AILA, encumbered is not a controlling factor SWA will not be necessary; therefore,
among other commenters, criticized the in prompting an audit because the no extension of the response time is
proposed rule for not containing any overwhelming percentage of these jobs warranted for this purpose.
criteria for audits, and contended the are encumbered. One commenter urged that absent
type of criteria that might flag a case for We anticipate using random-sampling allegations of fraud or
audit should be specified so that techniques to produce a representative misrepresentation, a 90-day limit from
employers may have a reasonable sample of the entire universe of the date of the certification decision
expectation of the factors that might applications. In addition, we will target should be established for when DOL can
lead to an audit. for audit other applications that appear issue an audit letter. Otherwise, an
Other commenters, however, opposed to have problematic issues. We do not employer may have obtained an I–140
making the audit process predictable. believe it is appropriate to include from the DHS based on an approved
FAIR stated immigration attorneys and sampling standards in this final rule labor certification and be proceeding
consultants will quickly be able to learn because we want the flexibility to through the adjustment of status process

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with the DHS when the audit letter is system. ACIP suggested that instead We received approximately 20
issued. Another commenter noted the DOL adopt fines and penalties for comments on this proposal.
rule provides no guidance on the length various levels of misrepresentation Commenters suggested the criteria for
of time an employer must maintain similar to those employed in the H–1B when a CO may require supervised
documentation. Because the proposed context. Another commenter suggested recruitment should be made more
rule authorizes revocation of a labor consequences similar to those in the specific. Several commenters
certification, the commenter LCA program used in connection with questioned whether the CO would have
recommended DOL specify the time H–1B filings. A SWA recommended that the information and resources necessary
period in which an audit letter may be failure to submit information in a timely to adequately supervise the recruitment.
sent, so employers do not mistakenly way be penalized by barring the A few commenters discussed the details
assume that once a certification is employer from refiling for at least 6 of the supervised recruitment process
granted they no longer need to maintain months. itself, including the time limits for an
the documentation. One commenter stated the automatic employer to respond to a request from
The commenter’s proposal that audit presumption of a material the CO for a report on the supervised
letters must be issued no more than 90 misrepresentation is unreasonable. recruitment. One commenter questioned
days after the certification date is AILA stated the rule’s presumption of the effectiveness of supervised
unnecessary. This final rule clearly material misrepresentation ‘‘violates recruitment in general and suggested
states audit letters are issued before a fundamental precepts of fairness.’’ AILA abandonment of supervised recruitment.
final determination is made under noted the audit letter may not be
received, the employer may be on 1. Criteria for Requiring Supervised
§ 656.24. Recruitment
Regarding the retention of supporting vacation, or the response may be lost in
documentation, as discussed above such transit. After reviewing the comments, AILA claimed the proposed
documentation must be maintained for we have decided failure to provide regulations do not set out any standards
five years from the date of filing. supporting documentation will not be or guidelines for when and in what
deemed a material misrepresentation. circumstances a CO may order
4. Extensions Instead, this final rule provides in supervised recruitment. The commenter
Several commenters supported § 656.20(a)(3) that failure to provide stated this will lead to inconsistent
allowing extensions of time to respond required documentation in response to practices. Another commenter
to audit letters. AILA stated not an audit letter will result in denial of contended the proposed rule was
allowing extensions under any the pending application and may result unclear about whether supervised
circumstances is too harsh. Other in an order to conduct supervised recruitment may be required outside the
commenters also supported extensions recruitment under sections 656.20(b) or audit process. If so, the criteria used to
in appropriate circumstances. One 656.24(e) in future filings of labor make the determination should be
commenter stated the elimination of any certification applications. Several specified. If not, the text of the proposed
possibility of extension of time would commenters mistakenly asserted an rule should be amended to remove the
deny employers due process. employer’s failure to provide supporting word ‘‘including’’ from
We have concluded it would be documentation when requested in an § 656.20(a)(3)(ii).
appropriate for this final rule to provide audit letter would invariably result in One commenter noted the preamble to
that COs may in their discretion, for an order to conduct supervised the proposed rule stated supervised
good cause, grant one extension up to 30 recruitment for a period of two years; recruitment could be required on the
days for the employer to provide however, we believe it is more basis of labor market information.
requested documentation. reasonable to provide the CO with However, the commenter suggested
discretion to review the circumstances there was a potential conflict between
5. Penalties for Failure To Respond the layoff provisions of the proposed
in each case to determine whether this
Timely to the Audit Letter penalty will be imposed. For this rule and the rule’s preamble concerning
The proposed rule authorized a CO to reason, both §§ 656.21(a) and 656.24(f) the type of labor market information the
deem an employer’s failure to submit state the employer ‘‘may’’ be required to CO could rely upon to order supervised
ocumentation in response to an audit conduct supervised recruitment, not recruitment. According to the
letter a material misrepresentation of the that an employer ‘‘shall’’ be required to commenter, the layoff provision
employer’s attestations that it complied conduct supervised recruitment. (§ 656.17(k) of this final rule) refers to a
with all documentation requirements. With respect to the recommendations layoff by the employer applicant, while
As proposed, if the CO determines a by some commenters to impose fines the preamble includes strongly worded
material misrepresentation was made, and penalties (such as debarment of an language that the CO may rely upon
the employer may be required to employer) similar to those employed in generic labor market information,
undergo supervised recruitment. the H–1B program, we have concluded including information about layoffs by
Some commenters objected to the that before making such fundamental other companies within the same
proposed rule’s definition of a material changes we should publish any fines industry or geographic region.
misrepresentation. One commenter and penalties we may be considering for One commenter noted if the CO
maintained the rule should clarify the notice and comment in a proposed rule. believes there is worker availability at
definition of ‘‘material Therefore, we have not included any the time of adjudication, the CO can
misrepresentation’’ as used in new fines or penalties in this final rule. order a current test of the labor market
§ 656.20(a)(3)(ii) and recommended although there was no worker
DOL use the common law definition of O. Supervised Recruitment availability when the application was
the term to develop the rule definition. The proposed rule provides in any filed. The commenter indicated an
ACIP stated the presumption of case in which the CO considers it to be employer should have the right to
material misrepresentation if the 21 day appropriate, post-filing supervised request a retest of the labor market in
deadline is missed is unduly harsh for recruitment may be required of the those situations where U.S. workers
good-faith employers and an insufficient employer. The supervised recruitment were available at the time it conducted
deterrent to those trying to defraud the will be directed by the CO. a test of the labor market. This is

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particularly a problem when there has believe the COs will be able to handle and RIR be made the standard for all
been a lengthy interval between the whatever supervised recruitment is labor certification applications.
filing of the application by the employer required. One commenter noted advertising is
and the adjudication by the CO and required prior to filing an application.
3. Knowledge of the Certifying Officer Because supervised recruitment will
labor market conditions have changed
in the interim. Several SWAs felt the CO would not take place after filing, the commenter
Under the final rule at § 656.21, post- have adequate knowledge of local labor believed the advertising under
filing supervised recruitment may be market conditions, experience with the supervised recruitment will be
ordered in any case where the CO details of state employment service needlessly repetitive, and could create
deems it appropriate. As we stated in systems, or knowledge of local conflicting descriptions and
the preamble to the proposed rule, we newspapers. One SWA stated DOL requirements of the job between the first
anticipate the decision to order would need to set up an information unsupervised round of advertising and
supervised recruitment will usually be conduit with the SWAs so DOL will the second supervised round of
based on labor market information. have the necessary information to advertising.
However, it is impossible to determine conduct supervised recruitment. We will not place limits on the CO’s
in advance every reason why supervised Another SWA stated the knowledge and authority to designate appropriate
recruitment may be appropriate. We do experience of the SWAs with respect to sources for recruiting U.S. workers.
not wish to limit the authority of the labor conditions will be entirely ignored However, we agree the CO should notify
COs in this regard. under the proposed system, and the the employer of all appropriate
We see no conflict between the layoff rules offer no guidelines by which DOL recruitment sources at the outset of the
provisions of § 656.17(k) (§ 656.17 (j)(1) would be able to make determinations recruitment process, so employers will
of the NPRM) and the preamble to the that U.S. workers could acquire the not be required to go through multiple
NPRM concerning the type of labor skills of a particular job for a particular rounds of recruitment. By and large, this
market information the CO may employer in a particular area. is not a problem under the current
consider in ordering supervised The knowledge of the CO and system. As we gain more experience
recruitment. While the layoff provision coordination with the SWA is covered with the program, we will issue
addresses a required part of the in our discussion of the role of the SWA administrative guidance if appropriate.
employer’s recruitment process, layoffs in Section B above. Regarding the lack There are no statutory requirements
in the area of intended employment may of guidelines for determining whether that we approve advertisements within
indicate additional recruitment is U.S. workers could acquire the skills for any specified time frame; therefore, this
needed to make an adequate test of the a particular job opportunity, see our final rule does not impose any time
labor market. The main point of the discussion of on-the-job training above. limits by which the CO must approve
preamble language in our discussion of advertisements. One commenter
4. Supervised Recruitment Process suggested all recruitment be completed
the layoff provisions is to indicate the
proposed rule requiring employers to One commenter contended the within 60 days. We will not impose an
consider workers they have laid off proposed rule fails to place limits on the overall time limit for the recruitment
within a reasonably contemporaneous CO’s ability to designate appropriate process; however, we do believe there
period of time is consistent with our sources of workers where the employer should be limits at various stages of the
longstanding position that COs have the must recruit. The commenter claimed process so we can attain closure in the
authority to consider such workers. See there must be some limits imposed on case. This final rule imposes the
§§ 656.24(b)(2) and 656.24(b)(2)(iii) in the amount of recruitment required, to following time limits: the employer
the current regulations. avoid multiple rounds of recruitment must supply a draft advertisement to the
and even different types of recruitment CO for review and approval within 30
2. Resources of the Certifying Officer in different parts of the country, days of being notified that supervised
Several commenters questioned depending on what the CO believes is recruitment is required. As directed in
whether the CO would have the appropriate. the letter from the CO approving the
resources necessary to conduct Two commenters suggested time advertisement, the employer must
supervised recruitment. One SWA limits should be established for the CO advise the CO when the advertisement
recommended the proposal to have the to approve advertisements, stating that will be published. The employer must
CO conduct supervised recruitment time limits are particularly important provide to the CO a detailed written
should be deleted, because of the lack when the employer is required to report of the employer’s supervised
of resources on the part of the CO. Two publish in the next-available recruitment within 30 days of the CO’s
SWAs said the COs may not have the publication. Another commenter stated request for such a report (§ 656.21(e)).
capacity to process large volumes of supervised recruitment should be This final rule provides in the event
cases requiring supervised recruitment. required to be completed within 60 days required documentation or information
One SWA stated that given the number or the application be denied. AILA is not provided within the 30 days of
of applications filed annually and the stated in light of the potential for the CO the date of the CO’s request, the CO will
small number of regional offices, there to require extensive supervised deny the application. However, COs in
was reason for concern about the extent recruitment, the proposed 21 day their discretion, for good cause shown,
to which regional office staff will be response period is not sufficient. AILA may grant one extension to any request
able to assist employers, or to continue urged DOL to adopt a longer response for documentation or information.
to supply the same level of service period, or, at a minimum, give the CO The commenter’s concern that post-
currently supplied by state and local discretion to extend the 21 day period. filing supervised recruitment will be
offices. ACIP stated the proposed rule needlessly repetitive is misplaced. Post-
Administrative decisions about the mandates outdated recruitment methods filing supervised recruitment routinely
way DOL allocates resources are outside that studies have shown are ineffective occurs under the current system; e.g.,
the scope of this rule. Therefore, this at finding qualified workers. This after a NOF or when an employer’s
final rule does not specify how commenter recommended DOL- request for RIR processing is denied.
resources shall be used. However, we do supervised recruitment be eliminated, Changes in job descriptions and

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requirements are routinely needed to b. Time to File Requests for Review and determines that the employer
correct deficiencies in the original test Reconsideration substantially failed to produce
of the labor market. Program experience The proposed rule would have supporting documentation, or the
has shown these types of changes do not reduced the time for an employer to file documentation was inadequate, or a
create confusion among employers or a request for reconsideration of a denied material misrepresentation was made
job seekers. labor certification application from 35 with respect to the application, or it is
Regarding the suggestion that DOL- calendar days to 21 days. Two appropriate for other reasons. It should
supervised recruitment be eliminated, commenters emphasized the reduction be noted, however, a CO may determine
we think supervised recruitment is a should be eliminated. AILA maintained that supervised recruitment should be
reasonable quality control measure in an 21 days is insufficient time to prepare conducted, although the 2-year period
attestation-based system. a request for reconsideration because for which an employer was required to
5. Technical Correction the CO may in his or her discretion treat conduct supervised recruitment has
it as a request for review. Therefore, we expired, for reasons unrelated to those
We have made a technical correction agree as much time has to be given to supporting the original supervised
in § 656.21(b), which now reads: ‘‘If preparing a request for reconsideration recruitment requirement.
placed in a newspaper of general as to preparing a request for review. Three commenters recommended
circulation, the advertisement must be As with other 21 day deadlines in the stricter penalties for material
published for 3 consecutive days, one of proposed rule, we have increased this misrepresentations, including
which must be a Sunday; or, if placed period from 21 to 30 days in this final debarment.
in a professional, trade, or ethnic rule. We believe this increase in time is
publication, the advertisement must be warranted because requests for Since we did not propose stricter
published in the next available reconsideration may be treated as a penalties in the proposed rule, the final
published edition.’’ request for review by the CO. rule does not provide for any such
Additionally, final determinations may penalties, such as debarment. As
P. Labor Certification Determinations indicated above, we have concluded
be delayed in the mails, and
1. Referral of Applications to the circumstances may arise that are beyond that before making major changes with
Division of Foreign Labor Certification the control of the employer. respect to the imposition of penalties,
we should publish any penalties we
The Notice of Proposed Rulemaking c. Submittal of New Information in
may be considering for notice and
did not provide for referral of Reconsideration Requests
comment in a proposed rule. We will
applications presenting special or One commenter pointed out the consider the imposition of stricter
unique problems to the National proposed rule did not specify whether penalties in any future rulemakings
Certifying Officer for determination, or an employer may submit new involving the permanent labor
for the possibility of directing that information when making a request for certification program.
certain types of applications or specific reconsideration. The commenter favored
applications be handled in the national We have also decided not to make
allowing employers to provide new
office as provided for in the current supervised recruitment mandatory for
information in the request for
rule. We have concluded, however, it up to 2 years if the CO determines the
would be prudent to retain similar employer made a material
Practice under the current regulations
authority in this final rule. Accordingly, does not contemplate consideration of misrepresentation with respect to an
this final rule provides for the handling new evidence in requests for application. Such a requirement would
of permanent labor certification reconsideration. This final rule merely result in a determination of how
applications in certain circumstances at codifies the current practice. resources would be allocated in the
§ 656.24(a). We have determined the future, possibly resulting in a loss of
handling of certain applications in the d. Material Misrepresentation flexibility to target audits in accordance
national office is a matter of agency If the CO determines the employer with program experience, resources, and
procedure under the Administrative made a material misrepresentation with volume of applications to process.
Procedure Act. respect to the application for any Q. Board of Alien Labor Certification
2. Comments on Determination Process reason, the employer may be required to Appeals Review, Consideration, and
conduct supervised recruitment in Decision Process
The commenters focused on four future filings of labor certification
issues: able and qualified U.S. workers, applications for up to 2 years. 1. Technical Changes
time to file requests for reconsideration, As noted above, this final rule has
whether new information could be been revised to provide that failure to Technical Changes were made to
included in requests for reconsideration, provide supporting documentation will § 656.27 to conform to § 656.41 which
and material misrepresentations. not automatically be deemed a material provides a request for review of a
misrepresentation. The final rule states prevailing wage determination of a CO
a. Able and Qualified U.S. Workers may be made to the Board of Alien
that failure to provide supporting
Comments on able and qualified U.S. documentation in response to an audit Labor Certification Appeals (BALCA)
workers are essentially covered in our letter may result in supervised within 30 days of the date of the
discussion of the recruitment report recruitment under § 656.21(a) or decision of the CO. Section 656.27
above. Employers, as well as the CO, § 656.24(e). Accordingly, § 656.24(f) of specifically provides that BALCA must
must consider a U.S. worker qualified this final rule has been revised to review the denial of a labor certification
for the job opportunity if the worker can provide that the employer may be under § 656.24, a revocation of
acquire the skills necessary to perform required to conduct supervised certification under § 656.32, or an
the duties involved in the occupation recruitment pursuant to § 656.21 in affirmation of a prevailing wage
during a reasonable period of on-the-job future filings of labor certification determination issued by the SWA under
training. applications for up to 2 years, if the CO § 656.41.

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2. Comments on Proposed Rule b. Time Allowed to File Request for laws, they should be debarred from
Review using the permanent labor certification
We received six comments on program for a period of years. We have
§§ 656.26 and 656.27 regarding the role All those who commented on the
issue opposed the proposal to reduce concluded providing for a penalty such
of BALCA under the proposed system. as debarment should not be made
The comments dealt with three issues: the time allowed for an employer to file
a request with BALCA for review of a without publishing it for notice and
elimination of remands, the time comment in a proposed rule. Therefore,
allowed for filing requests for review, denial or revocation of certification from
35 to 21 days. One commenter noted the we are not making the requested change
and enforcement. in this final rule.
reduced time may result in more cases
a. Elimination of Remands being refiled because of missed filing R. Validity of and Invalidation of Labor
We received three comments opposed dates for requesting review. AILA Certification: Substitution of Alien
to the proposal to eliminate BALCA’s expressed the view that allowing 21 Beneficiaries and Issuance of Duplicate
authority to remand cases to a CO for days to file a request for review would Labor Certifications
further consideration or fact-finding and not allow sufficient time to craft a
proper request for review in light of the 1. Substitution of Alien Beneficiaries
determinations. AILA maintained
eliminating BALCA’s authority to time lost in the mail between issuance The proposed regulations would
remand a case would violate the of a denial and its receipt by an conform the provisions of 20 CFR
Administrative Procedure Act (APA), employer. AILA recommended the 35- 656.30(c) to the decision of the U.S.
which requires every adjudicatory day period provided in the current Court of Appeals for the District of
decision to be accompanied by a regulations to file a request for review Columbia in Kooritzky v. Reich, 17
statement of findings and conclusions. be retained. F.3rd 1509 (DC Cir. 1994) and DOL’s
Removing BALCA’s remand capability Another commenter noted one major operating practice after the U.S. Court of
will violate basic, fundamental due purpose of the new system is to provide Appeals decision striking down the no
process rights by removing the right of a mechanism for the adjudication of substitution rule.
parties to be given notice and an labor certifications, and observed
Our program experience, however,
opportunity to be heard concerning employers are required to meet various
indicates the current practice of
government decisions affecting their 35-day deadlines throughout the current
allowing substitution of alien
interests. AILA also noted we provided regulations. This commenter suggested
beneficiaries on approved labor
no basis for our stated reason for to make the entire system responsive,
certifications may provide an incentive
eliminating remands in the NPRM; DOL should consider specific time
for fraudulent labor certification
namely, that cases would be sufficiently limits for completing its review.
applications to be filed with the
developed by the time they got to As with the other 21 day deadlines in
Department. For example, labor
BALCA. AILA indicated its experience the proposed rule, we have increased
certifications have been submitted on
was just the opposite, and it is not the time allowed to file a request for
behalf of nonexistent employers,
uncommon for BALCA to reverse a CO’s review to 30 days in this final rule. We
submitted without the knowledge of the
decision and then remand the case believe the time that may be lost in the
employer, or submitted on behalf of
because it had insufficient information mail and the time and effort to craft a
employers who are paid for the use of
in the record to simply approve it. request for review justifies such an
their name. In many cases, the named
Another commenter was of the increase. We have concluded 30 days
alien on the application may be
opinion that cases under the proposed should be sufficient time to file requests
fictitious or the same named alien may
labor certification system will be less for review because employers should
be used on many labor certification
developed than they are in the current have the factual material to support a
applications. Once an application is
system when they reach BALCA, as the request for review readily at hand.
certified, it can be marketed to an alien
new system will eliminate assessment We have decided not to impose
who is willing to pay a considerable
letters by the SWAs and NOFs, deadlines on our review activity. There
sum of money to be substituted for the
increasing the chance that cases will is no statutory requirement that we
named alien on the certified
need further development when they complete our review activity within a
are reviewed by BALCA. specified period of time. Further, we do
not have control over the allocation of The sale, barter or purchase of labor
One commenter indicated if BALCA resources that might be necessary to certifications is not condoned or
does not have remand capability, cases adequately respond to an increase in the approved by the Department. The
involving good faith but inadequate number of applications filed by Department has concluded the
recruitment will be denied instead of employers. secondary market in approved labor
being remanded for additional certifications that has developed merely
recruitment as they would be in the c. Only Employer Can Request Review to facilitate the entry of an alien who is
current system. We received no comments opposing willing to pay a substantial sum of
After reviewing all of the comments, our proposal that only employers be money to obtain permanent resident
we have concluded BALCA should not allowed to request review of a denial or status is not consistent with the purpose
have authority to remand cases to the revocation of a labor certification. of the labor certification statute at
CO. The processing model that Accordingly, this final rule provides, as section 212(a)(5)(A) of the INA and the
underlies this rule does not contemplate did the NPRM, that only the employer Department’s labor certification
the type of interchange between the may request review of a denial or regulations at 20 CFR part 656. The
employer and the Certifying Officer that revocation of a certification. Department will be exploring in the
is reflected in the current process; thus, near future regulatory solutions to
it is not apparent what the Certifying d. Debarment of Employers address this issue. In the interim, we
Officer would do if a case were The AFL–CIO believed in cases where plan to implement the measures
‘‘remanded.’’ Accordingly, the final rule employers using the labor certification described in this final rule to check the
does not allow for remands. program violate labor and employment bona fides of the employer applicant.

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We received a few comments in will be pursuing a formal prosecution; Certification, would have to take to
support of allowing substitution of alien however, this is not the case. The revoke a labor certification
beneficiaries. proposed rule clearly provided that improvidently granted.
processing is continued if 90 days pass Several commenters urged DOL to
2. Issuance of Duplicate Labor reconsider this provision. Most of the
without the filing of a criminal
Certifications commenters objected to the provision
indictment or information, or without
AILA requested DOL revise the being advised by DHS that an either in whole or in part. Some felt the
process for obtaining copies of approved investigation is being conducted. provision was unnecessary because
labor certifications. Currently, the FAIR believed the proposed sufficient enforcement measures are
employer, alien, or agent may request a regulation providing for a 90-day currently in place. Others felt revocation
copy of the approved labor certification suspension of processing (as in the should be limited to cases involving
only through DHS or a Consular Officer. current regulations) should be fraud or willful misrepresentation. Most
AILA stated it understood DOL needs eliminated. FAIR maintained it is of the commenters asked DOL to
to ensure labor certifications are arbitrary to expect investigations articulate the procedural and
safeguarded from fraudulent uses, but sufficient for criminal investigation or substantive standards under which
noted the current process takes an civil suits to be completed in 90 days. certification could be revoked.
inordinately long time. We agree with FAIR’s comments are consistent with
AILA that a more efficient system for 1. Criteria for Revoking Labor
our program experience in
issuing duplicate labor certifications can Certifications
administering the current regulation
be developed without losing existing requiring processing of an application Many commenters requested we
safeguards to prevent the fraudulent use that has been referred to DHS. In the develop standards and criteria for
of duplicate certifications. Therefore, overwhelming majority of cases, DHS revoking labor certifications and define
this final rule amends the existing does not provide us with any ‘‘improvidently granted.’’ Some of these
regulation at § 656.30(e) by adding an information as to what action it may commenters also expressed concern that
additional means of requesting a have taken with respect to the employers would have no certainty in
duplicate labor certification. The CO application we referred for the workplace unless they knew the
may issue a duplicate labor certification investigation. Our experience indicates criteria by which this provision will be
to a Consular or Immigration Officer at it may take DHS longer than 90 days to enforced.
the request of the employer or the investigate a matter involving possible A few commenters suggested the only
employer’s attorney. The employer’s fraud or misrepresentation and to valid reason for revoking a labor
request for a duplicate labor determine whether to file a criminal certification once it has been granted is
certification must be addressed to the indictment or information. Due to the if the employer had submitted a
CO who issued the labor certification. concerns expressed about fraud by fraudulent application or willfully
The employer’s request must (1) contain many commenters, and because it is misrepresented its case. One commenter
documentary evidence from the conceivable another investigatory suggested DOL should not be allowed to
Consular or Immigration Officer that a agency could be investigating a matter revoke a labor certification based upon
visa application or visa petition, as referred for investigation, this final rule layoffs or changes in market conditions
appropriate, has been filed and (2) provides that after a matter is referred to after the certification. Another
include a Consular Office or DHS DHS for investigation, if 90 days pass commenter stated there are innumerable
tracking number. without the filing of a criminal reasons why a visa might not be
indictment or information, or receipt of received within 1 year, including
S. Labor Certification Applications increasing delays at the DHS and U.S.
a notification from DHS or any other
Involving Fraud or Willful consulates, and that it is unfair to have
investigatory body that an investigation
Misrepresentation the fate of an application depend on
is being conducted or that it intends to
Most of the comments on the section start an investigation in the foreseeable circumstances beyond the control of the
of the proposed rule dealing with labor future, the CO may continue to process petitioner and beneficiary.
certification applications involving the application. After reviewing all the concerns
fraud or willful misrepresentation have In light of the general concerns voiced expressed about possible fraud in the
been discussed above. about fraud by commenters we have permanent labor certification program
The proposed regulation carried over deleted the requirement that if a matter by commenters, we have determined it
the provisions of the current regulations is referred to the DHS for investigation, would be inappropriate for Certifying
and included an alternative provision the CO must notify the employer, and Officers to have only a limited right to
that provided ‘‘(i)f 90 days pass without send a copy of the notification to the revoke a labor certification. Therefore,
* * * receipt of a notification from alien. Such notification may undermine this final rule provides that a labor
[DHS] that an investigation is being the purpose of the investigation. certification can be revoked if the
conducted, the CO must continue to Certifying Officer finds the labor
process the application.’’ However, we T. Revocation of Approved Labor
certification was not justified, instead of
are broadening this section to Certifications
improvidently granted as would have
encompass investigations being Under the proposed rule, the CO been provided by the proposed rule.
conducted by other appropriate would have limited authority to revoke This change in the final rule will allow
authorities. labor certifications within 1 year of the the CO to revoke a labor certification for
We received two comments about the date the certification was granted or any ground that would have resulted in
procedures to be followed with respect before a visa number becomes available a denial of the Application for
to applications that are referred to DHS to the alien beneficiary, whichever Permanent Employment Certification,
for investigation. AILA was under the occurs first (see § 656.32 in this final whether unintentional or willful.
impression that processing of rule). The proposed rule specified the
applications would be suspended steps the CO who issued the 2. Time Limit for Revocation
indefinitely, pending a formal certification, in consultation with the One commenter pointed out the time
notification from DHS as to whether it Chief, Division of Foreign Labor limit for revocation should not be ‘‘until

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the visa number becomes available,’’ Application for Permanent Employment SWAs to establish validity periods
because all employment-based Certification (ETA Form 9089). between 90 and 365 days. The
preferences are now current. This As explained in our discussion to commenter stated employers could not
commenter suggested the limit should consolidate the ETA 9088 and ETA 9089 be expected to conduct and complete
be ‘‘until the I–140 is approved’’ or into a single application form, under recruitment within 90 days of receipt of
‘‘until the I–485 is filed’’ or ‘‘until a this final rule, the employer will request a PWD, particularly when involved in
change of status is granted.’’ In addition, a prevailing wage determination using ongoing recruitment for multiple
FAIR urged us to eliminate the 1-year the form required by the state where the positions. The commenter urged DOL to
limit on revocation. job opportunity is located. Information amend the proposed rule so all PWDs
We have determined since this final from the proposed PWDR form, such as remained valid for at least 1 year.
rule will provide the Certifying Officer the prevailing wage, occupational code Another commenter asked about the
with the authority to take steps to and level of skill, job title, state validity period for a PWD based on the
revoke a labor certification for fraud and prevailing wage tracking number, and Davis Bacon Act (DBA), Service
willful misrepresentation, obvious the date the determination was made Contract Act (SCA), a collective
errors, or for grounds or issues will be included on the ETA Form 9089. bargaining agreement (CBA), or an
associated with the labor certification The state workforce agency PWDR form employer-provided or published survey.
process, there should not be any time must be retained by the employer, and A SWA strongly recommended all
limit on the authority of the Certifying will be submitted only if the application prevailing wage determinations,
Officer to revoke a labor certification. is selected for an audit or as requested whether based on the OES, DBA, SCA,
by the CO. a CBA, or employer-provided or
3. Consultation With National Certifying published survey, be valid for the same
Officer 2. Prevailing Wage Determination amount of time.
We have also determined that a Response Time This final rule makes no substantive
provision in the regulations for A few commenters stated the changes with respect to validity dates as
consultation with the National proposed rule should incorporate proposed in the NPRM. The SWA must
Certifying Officer before steps to revoke various time limits for the processing of specify the validity of the prevailing
be taken by the Certifying Officer is not PWDR’s. wage, which in no event may be less
necessary since communication and One commenter expressed concern than 90 days or more than 1 year from
oversight of application processing and that the proposed rule favors the OES the date of the determination.
granting of certifications will be greatly survey over published salary surveys, Employers are required to file their
enhanced under the new permanent because it will most likely take longer applications or commence the required
labor certification system. Applications for an employer to get a PWD if the pre-filing recruitment within the
for permanent employment certification employer relies on a published salary validity period specified by the SWA.
will not be processed in regional offices, survey. As a result, employers would be One commenter believed the
but in two ETA application processing pushed into using the OES survey to proposed rule was ambiguous about the
centers. The Directors of the ETA obtain an earlier immigrant visa priority prevailing wage to be paid to employees
application processing centers will date for their employees. who immigrate based on a permanent
report directly to the Chief, Division of We are not imposing specific labor certification. The commenter
Foreign Labor Certification rather than timeframes on SWAs for making their stated it appears that the intent of the
to regional administrators. Accordingly, PWD, as recommended by several proposed rule was for the prevailing
this final rule does not provide that commenters. Because there is no set wage to be paid upon the employee’s
steps to revoke a labor certification have level of resources for funding this immigration or adjustment of status, but
to be taken in consultation with the activity, and because it is unclear how it was unclear whether the wage to be
National Certifying Officer. Provision many challenges and requests for PWD paid is the prevailing wage determined
for such consultation, if it is necessary, will be received, we believe imposing pursuant to § 656.40 or the prevailing
can be provided for administratively. specific timeframes would be wage at the time of immigration or
inappropriate. We anticipate SWAs will adjustment of status.
U. Prevailing Wages operate in as expeditious a manner as is With respect to this last comment, we
The NPRM proposed a number of possible. note the employer must certify on the
changes to the regulations governing the Regarding the concern that a PWD ETA Form 9089 (see item N.1 under
determination of prevailing wages. based on employer-provided surveys Employer Declaration) as follows: ‘‘The
These changes apply to both the will take longer than determinations offered wage equals or exceeds the
permanent labor certification program based on OES surveys, we believe the prevailing wage and the employer will
and the H–1B and H–1B1 nonimmigrant difference is warranted. It takes SWA pay the prevailing wage from the time
programs. The specific changes are staff much longer to complete a permanent residency is granted or from
discussed below. determination based upon employer- the time the alien is admitted to take up
provided wage data. A determination the certified employment’’. This is
1. Application Process
based on an alternative survey requires essentially the same policy expressed on
The NPRM proposed to standardize a review by the SWA of the statistical page 34 of Technical Assistance Guide
the prevailing wage determination methodology used in conducting the No. 656 Labor Certifications.
process by requiring employers to survey, including a determination as to
submit a PWDR to the SWA on a 4. Collective Bargaining Agreement,
whether the survey data is based upon
standardized form, the ETA Form 9088. Davis Bacon Act, and Service Contract
a representative sample.
A number of commenters had questions Act
about the contents of the ETA Form 3. Validity Period of Prevailing Wage The proposed rule eliminated the
9088. Most questions concerned how Determinations mandatory use of DBA and SCA wages,
changes would be made to the job A few commenters requested DOL where applicable. Several commenters,
description and how the ETA Form address the validity period for PWDs. including some SWAs and AILA,
9088 would be matched to the One commenter questioned allowing supported this proposal. These

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commenters felt the DBA and SCA were surveys of the construction trades are believe retaining this level of
suitable for government contracts but more reliable than the OES survey complexity in the prevailing wage
not for other situations, and the OES because DBA surveys collect wage data determination process is warranted.
was a more realistic basis for making a not only by job classification, but by We have adopted AILA’s
PWD. Labor unions and other type of construction job, which varies recommendation that if an employer
commenters, on the other hand, widely. chooses to rely on a SCA or DBA wage,
believed the proposed approach would One SWA supported condensing that wage generally will be considered
undercut protections for U.S. workers. surveys into collective bargaining- prima facie evidence of the prevailing
The AFL–CIO and the Laborers’ derived wages and OES-derived wages. wage. The SWA will not question the
International Union of North America However, the commenter cautioned that employer’s use of the SCA or DBA
(LIUNA) contended that, despite DOL’s until OES could provide coverage for survey as long as it is applied in an
assertions to the contrary, the proposed more occupations, particularly in appropriate manner. However, should
approach would decrease administrative domestic service, SCA determinations an employer attempt to apply a SCA or
convenience for SWAs and DOL. The should continue. DBA wage in an inappropriate manner
International Brotherhood of Bricklayers Two commenters agreed with the (e.g., by using the wrong occupational
and Allied Craftworkers added provision in the proposed rule that classification, geographic area, or level
administrative convenience was but one employers be allowed to use DBA and of skill), the SWA will not accept it as
reason for using the DBA and SCA wage SCA wage rates as alternatives to OES an alternative to the OES wage. At that
determinations, the other being to wages. AILA asked the final rule specify point, the employer will be free to
ensure offers of employment do not that SCA and DBA wages be prima facie challenge the SWA’s rejection of the
undercut local wages. evidence of the prevailing wage, should SCA or DBA determination by
The AFL–CIO also disputed DOL’s the employer choose to rely on either of requesting a review by the Certifying
assertion that BALCA’s decision in El these two sources. Officer.
Rio Grande on behalf of Galo M. Narea We have concluded that, while the
(1998–INA–133, February 4, 1998; use of DBA and SCA as wage data 5. Elimination of 5 Percent Variance
Reconsideration July 28, 2000) sources of first resort should be The overwhelming majority of the
compelled DOL to reconsider its eliminated as proposed, employers commenters opposed the proposed
practice of using DBA and SCA wage should have the option of using this elimination of the 5 percent variance.
determinations for alien labor data at their discretion. We believe the Much of the opposition was driven by
certifications. The AFL–CIO argued continued mandatory use of SCA and the commenters’ viewpoint that a
BALCA’s reference in El Rio Grande to DBA determinations would continue to margin of error is required when dealing
the availability of ‘‘other information’’ complicate the operation of the with large surveys, such as the OES
that was a better source for determining prevailing wage system because of the survey, that consolidate various
prevailing wages than the SCA did not differing occupational taxonomies sampling points for simplification and
justify a change in DOL practice, and between OES and DBA/SCA. are based on historical data that may not
maintained determinations based on the The suggestion that SCA represent present market conditions.
SCA wage are more reliable than those determinations be retained because SCA Commenters believed a variance is
based solely on OES wages. wages are more ‘‘accurate’’ is not needed to compensate for sampling
The International Union of Operating compelling. In many instances SCA errors, to enable employers to take into
Engineers (IUOE) and LIUNA pointed to determinations are based upon data account varying levels of worker
DOL presentations and public from the NCS. While the NCS is an experience and qualifications, and to
information describing the strengths and excellent, albeit very expensive, source allow employers to tailor wages to
weaknesses of the OES survey and the of wage data based on on-site data current economic conditions.
National Compensation Survey (NCS) to collection by trained staff, it is limited FAIR and a SWA prevailing wage
support its argument that the NCS is in scope. Only about 450 occupations in specialist supported the proposed
superior to OES. The IUOE noted approximately 85 geographic locations elimination of the 5 percent variance.
problems with using the OES survey: are covered, and not all occupations are Two other commenters suggested the
OES data does not provide occupational included in each geographic area. Thus, variance be increased to incorporate
work levels, use of OES data results in the NCS is inadequate as a sole source discretionary bonuses and commissions
the underestimation of wages of workers for prevailing wages for the permanent that are included as part of the wages
in seasonal jobs, and OES data does not labor certification program, which must paid in OES surveys. Two commenters
include fringe benefit data. The IUOE deal with a myriad of occupations requested clarification on whether the
also suggested employers would choose across the nation. In addition, SCA wage regulations eliminate the 5 percent
the methodology that produced the determinations start with data from the variance for employer-conducted wage
lowest wage rates. LIUNA identified NCS, but also incorporate OES data. The surveys and other published surveys.
other concerns about the OES survey’s SCA also uses a concept known as Several commenters emphasized that
reliability, capacity for determining ‘‘slotting’’ when determining a wage for eliminating a variance may compel
median and mean wages, and ability to an occupation/area combination for employers to pay foreign workers more
collect data for work levels. LIUNA also which they have no data. In slotting, than U.S. workers. A university medical
provided specific examples in which wage rates for an occupational center commented the 5-percent
OES wages would undercut the SCA or classification are based on a comparison variance amounted to a substantial part
DBA wage determinations. of equivalent or similar job duties and of its limited funding. Another
The AFL–CIO defended use of the skill characteristics between the university observed that elimination of
DBA, stating that DBA surveys produce classification studied and those for the variance would result in decreased
a true ‘‘prevailing wage,’’ that is, a wage which no survey data is available. It hiring of post-doctoral research fellows.
rate paid more frequently to workers would be difficult, if not impossible, to A few commenters stated a 5 percent
employed in the same job than any segregate those SCA surveys that are variance was essential for the nonprofit
other wage rate paid in the same ‘‘better;’’ i.e., purely NCS-based from sector, given the absence of realistic
locality. LIUNA added DBA ‘‘universe’’ those that use slotting. We do not prevailing wage figures for nonprofit

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organizations in current surveys. These b. Inconsistency Among State Workforce a viable source for prevailing wages for
commenters alleged that, because DOL Agencies in Assigning Skill Levels cases in which the job classification is
has not created a separate wage system Several commenters alleged there was included in the BLS survey. ACIP
database for nonprofits, institutions inconsistency among SWAs in assigning contended SWAs currently reject the
should be allowed to use private wage levels. To address this issue, we BLS survey as a prevailing wage source
surveys. A few academic institutions primarily because the data include only
have provided training sessions to SWA
also requested DOL recognize one skill level for each occupation, and
staff involved in making PWDs. We
alternative wage surveys. the survey uses a median wage rather
have also issued several policy
than a weighted average. However, ACIP
Some commenters predicted a rise in directives to inform SWA staff and other
observed this one-wage level BLS
complaints and disputes over PWDs, interested parties how the regulations
survey provides more accurate
resulting in increased work for SWAs. governing the prevailing wage process
prevailing wage rate estimates for a
Other commenters viewed the should be interpreted on this particular
given occupation than the two-level
elimination of the variance as an unfair issue. We will continue to issue
OES system.
burden on small businesses struggling to guidance to the field as necessary, ACIP criticized the OES survey for
meet current wage determinations and including guidance concerning the violating DOL standards for acceptable
that they will be unable to remain requirements of the recently enacted employer-provided surveys. Therefore,
competitive. legislation. ACIP requested that such flexibility be
Evaluation of these comments has c. Academic Institutions afforded employers; e.g., that employers
been rendered unnecessary by the be allowed to use mathematical
A few universities felt the criteria modeling to generate data for the
enactment of the Consolidated
currently used by SWAs to differentiate current timeframe or for a particular
Appropriations Act of 2005 which
between Level I and Level II wage level location. Similarly, AILA also
amended the INA (Section 212(p)(3), 8
positions, as well as OES survey considered the OES survey to be flawed
U.S.C. 1182(p)(3)) to require, ‘‘the
methodology were inappropriate for because it includes discretionary
prevailing wage required to be paid
academic settings. According to the bonuses, commissions, cost-of-living
pursuant to (a)(5)(A), (n)(1)(A)(i)(II) and commenters, for academic positions,
(t)(1)(A)(i)(II) shall be 100 percent of the allowances, incentive pay, and piece
OES data are inapplicable because (1) rates, all of which are contrary to DOL’s
wage determined pursuant to those occupational ranking is a foundational
sections.’’ Therefore, the Department protocol for determining prevailing
element, (2) advanced degrees do not wages. Furthermore, AILA criticized the
must eliminate the practice of allowing necessarily correlate with practical
a 5 percent variance of the wage actually OES survey for failing to provide a
experience, and (3) entry-level weighted average or median of wages,
paid. personnel operate with a great degree of and for listing the number of workers
6. Skill Levels in Prevailing Wage independence and little supervision. that fit into pre-defined wage ranges
Determinations Several academic institutions also rather than including specific salaries of
challenged the SWA’s automatic each surveyed worker.
a. Number of Skill Levels designation of Level II to jobs that AILA suggested that in cross-industry
The NPRM generated considerable require an advanced degree. surveys, DOL should also endorse the
comments concerning the fact that the Evaluation of these comments is use of other reliable surveys. One
OES wage surveys provide only two rendered unnecessary by the enactment commenter suggested any standard
levels of wages. Many commenters of the Consolidated Appropriations Act published survey should be accepted so
criticized the OES survey for arbitrarily of 2005 which amended the INA that employers do not need to wait for
dividing salary data into two wage (Section 212(p), 8 U.S.C. 1182(p)) and extended periods to get their surveys
levels. Several commenters (including mandates the use of 4 levels. reviewed.
AILA and ACIP) suggested existing OES One commenter urged DOL to
7. Employer-Provided Wage Data
wage data would be more useful if the distinguish between employer-generated
Some commenters applauded DOL’s and independent surveys, stating only
number of wage levels were expanded
proposal to consider employer-provided credible independent surveys ought to
to appropriately differentiate among
alternative wage surveys, and offered be recognized, along with prevailing
various occupational groupings.
alternative surveys they felt DOL should wage surveys conducted by reputable
Evaluation of these comments is promote for use in determining employers. Another commenter
rendered unnecessary by the enactment prevailing wages. opposed the use of employer-provided
of the Consolidated Appropriations Act ACIP requested DOL clarify what alternative surveys unless the employer
of 2005 which amended the INA survey methodologies would be could guarantee that the surveys were as
(Section 212(p), 8 U.S.C. 1182(p)) to acceptable and what latitude employers accurate as the current OES data. One
provide: would be allowed in using published commenter expressed the view that
Where the Secretary of Labor uses, or surveys, particularly regarding survey SWA personnel were not qualified to
makes available to employers, a data gathered for uses other than alien review employer-provided wage data.
governmental survey to determine prevailing labor certification. Both AILA and ACIP We do not agree with the comments
wage, such survey shall provide at least 4 remarked the responsibility for from AILA and ACIP suggesting
levels of wages commensurate with determining whether an employer- responsibility for determining the
experience, education, and the level of provided survey is suitable should not suitability of employer-provided
supervision. Where an existing government rest with the SWA. ACIP requested DOL surveys be taken away from the SWAs.
survey has only 2 levels, 2 intermediate authorize SWAs to automatically accept SWAs have historically had a direct role
levels may be created by dividing by 3 the applicable surveys if they had been in determining the prevailing wage for
difference between the two levels offered, submitted and approved for use in each application filed under the
adding the quotient thus obtained to the first previous applications. permanent labor certification program.
level, and subtracting that quotient from the ACIP also recommended the Bureau This role has always encompassed not
second level. of Labor Statistics (BLS) be considered only the application of DBA or SCA or

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CBA wage determinations, but also the past, the SWA will still be required occupation divided by its weighted
review of any employer-provided to do some minimal review to ensure survey employment. With the exception
alternative wage data. Even though the the survey is being applied of the upper-ended wage interval, a
SWAs will no longer process individual appropriately with regard to the mean wage value is calculated for each
labor certification applications under occupational classification, geographic wage interval based on the occupational
the new system, employers will area, level of skill, etc. in the current wage data collected by the BLS Office of
continue to request SWA review of application. However, we encourage Compensation and Working Conditions.
alternative sources of wage data under SWAs to maintain records of approved The mean wage value for the upper
the nonimmigrant programs surveys and to keep the review of open-ended interval is its lower bound
administered by DOL. This will require previously accepted surveys to the (Winsorized mean). These interval mean
DOL to fund and maintain individuals absolute minimum necessary, without wage values are then attributed to all
with the necessary expertise at the SWA an extensive review of the statistical workers reported in the interval. For
level. At this time, we consider methodology and other factors that are each occupation, total weighted
continuing the SWA role in the not likely to differ across multiple averages in each interval are summed
prevailing wage determination process reviews of the same survey. across all intervals and divided by the
useful in maintaining the integrity of the We have accepted ACIP’s occupation’s weighted survey
labor certification program and to recommendation that SWAs should employment. Collecting wage data by
permit the Secretary of Labor to fulfill accept those BLS surveys that include interval allows BLS to survey a large
her statutory responsibility to certify only one skill level for each occupation number of employers while minimizing
that the employment of the alien will and use a median wage rather than a the burden on those employers. The
not adversely affect the wages and weighted average. A private survey that distribution of workers within the wage
working conditions of workers similarly provides one overall average for an ranges is used in both the calculation of
employed. However, it is possible that occupation is acceptable under the new the mean wages, and the calculation of
the results of our audit experience system (as it is under the current relative errors. These reliability
under the streamlined labor certification system). If the survey contains usable statistics are published with the wage
system and the program experience we wage data for varying levels of skill or estimates.
will obtain may provide information responsibility within the occupation, We further reject the suggestion that
that will help us to determine whether then the appropriate wage level must be employers guarantee alternative sources
the role of the SWA in reviewing used. The SWAs should be following of wage data are as accurate as current
employer-provided surveys and in other the same policy with respect to BLS OES data. When we adopted use of the
aspects determining prevailing wages surveys as with any other employer- OES survey (with a dramatically smaller
should be modified or eliminated. provided wage data submitted for number of occupational categories than
We will continue to provide training review. We will furnish appropriate were available under the DOT), we felt
opportunities and materials to the guidance to the SWAs so they will it was vitally important to provide
appropriate SWA staff on a periodic accept BLS surveys, as well as private employers with alternative choices of
basis, and will issue administrative surveys, that include only one skill level data sources.
policy clarification and procedural for each occupation and use a median The final rule provides, at § 656.40(g),
guidance as necessary to insure the wage rather than weighted average. that unless the job opportunity is
prevailing wage determination process We do not agree with the assertion by covered by a CBA, or by a professional
operates efficiently and consistent with ACIP that the OES survey methodology sports league’s rules or regulations, the
established policies and procedures. violates the standards currently in force SWA must consider employer-provided
Similarly, we reject the suggestion governing the acceptability of wage data in determining the prevailing
that alternative sources should not be alternative sources of wage data. Along wage. The use of such employer-
permitted because SWA personnel are similar lines, we reject AILA’s provided data is an employer option.
not qualified to gauge the statistical contention that the OES survey is The SWA’s role is merely to determine,
acceptability of surveys. On the flawed due to the inclusion of based upon whether the survey meets
contrary, SWA personnel involved in discretionary bonuses, commissions, the acceptability criteria set forth in the
the prevailing wage determination cost-of-living allowances, etc. The wage regulations and that were in section J of
process are individuals with expertise component of the OES survey measures GAL 2–98 or other guidance issued by
in this program area. the average rate of wages that were DOL, whether the employer-provided
We believe as long as the employer- actually paid to workers in the area of survey is adequate, not whether it is
provided survey meets the criteria intended employment in the survey more (or less) accurate than the OES
outlined in § 656.40(g) of the year’s sample. Under the current policy, survey.
regulations, or that were described in as long as payments to a worker that is
section J of GAL 2–98 or other guidance the beneficiary of a labor certification 8. Use of Median
issued by ETA, the survey should be application are guaranteed by the Several commenters commended
accepted by the SWA. It would be employer, they can be included in DOL’s proposal to allow the use of
extremely difficult, if not impossible, to determining whether the wage offered surveys that provide median prevailing
make any blanket determinations as to by the employer equals or exceeds the wages in the absence of the currently
what published surveys are or are not prevailing wage then in effect. required mean or weighted average
credible and independent, or which With respect to AILA’s criticism that under current regulation. One
employers are believed to be reputable the OES survey fails to provide a commenter opposed the use of a median
or not. weighted average or median and that it prevailing wage, stating it would not
With respect to the suggestion by does not include the specific salaries of necessarily represent the average wage
ACIP that previously submitted and each surveyed worker, we believe the of the workers surveyed.
approved surveys be automatically methodology employed in the OES The median is an acceptable measure
accepted for future applications, we survey is statistically rigorous and of central tendency widely used by
believe that even if the use of a defensible. The OES calculated mean organizations, including statistical
particular survey has been approved in wage is the estimated total wages for an agencies such as BLS, in determining

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average rates of wages. Use of the General Administrative Letter No. 1–00, In the NPRM, the Department
median will only be permitted in the Prevailing Wage Policy ‘‘Q’s & A’s’’ proposed to amend § 655.731(a)(2) to
absence of an arithmetic mean. We do (May 16, 2000), if the OES survey uses establish an additional requirement
not wish to rule out wage surveys that a Level 2 (contiguous) area or, by where an employer’s prevailing wage
are otherwise acceptable in terms of the implication, a Level 3 (statewide) or 4 determination was based on a survey
statistical methodology employed, but (nationwide) geographic area, a CMSA that set more than one wage rate for an
were unacceptable under current would be considered to be a reasonable occupation listed on the employer’s
regulations solely due to the use of the alternative. We acknowledge that the LCA. The Department proposed if an
median (as opposed to the mean) wage. terminology CMSAs and PMSAs are employer, in establishing its prevailing
being replaced by OMB. However, we wage determination for the occupational
9. Definition of Similarly Employed
will continue to recognize use of these classification, utilizes a survey that
Under the proposed rule, use of a area concepts as well as their provides more than one wage rate or
geographic area broader than the replacements. level for that classification, the
commuting distance is acceptable if a employer is required to pay the H–1B
representative sample of ‘‘similarly 10. Transition of H–1B Workers from worker at least the applicable wage rate
employed’’ workers in the area of Inexperienced to Experienced for the level of work as described by the
intended employment can not be employer. In making this proposal, the
obtained. AILA considered this proposal Section 212(n)(1) of the INA (8 U.S.C.
1182(n)(1)) requires an employer Department stated that if, during the life
beneficial, because it allows employers of the LCA, an entry-level H–1B worker
to default to CMSA or statewide data seeking to employ H–1B workers to
attest it will comply with prescribed gains experience and the nature of his/
when a corresponding MSA survey has her work grows in responsibility, the
an inadequate sample size. Despite this labor conditions. With respect to wages,
the employer agrees it is offering and applicable prevailing wage would be the
proposed change, AILA believed further wage set by the survey for the
adjustments would be needed because will offer during the period of
experienced level.
many reputable surveys start with the authorized employment to H–1B
Twenty-three commenters responded
CMSA as the lowest geographical area. workers wages that are at least the to the Department’s proposal. Although
AILA also maintained although actual wage level paid by the employer there was general support for the
employees may not commute within the to all other individuals with similar premise underlying the proposal, i.e., an
entire CMSA, these are wages that are experience and qualifications for the H–1B worker should be paid at the wage
reasonably uniform and therefore tend specific employment in question, or the level appropriate to his duties, the
not to vary significantly from MSA data. prevailing wage level for the commenters generally opposed the
AILA therefore requested that CMSA occupational classification in the area of notion that the H–1B wage attestation
surveys be considered acceptable. employment, whichever is greater, requirement relating to an employer’s
AILA’s recommendation concerning based on the best information available prevailing wage obligation mandated
the CMSA is generally consistent with as of the time of filing the application. the payment of multiple levels of wages.
existing policy regarding the area of The corresponding provision regarding Commenters expressed the following
intended employment. However, we can H–1B1 workers is in 8 U.S.C. 1182(t)(1). views on the Department’s proposal:
not agree that CMSAs should always be As explained in the statutory section • The statute requires only the
considered as reflecting the area of above, DOL’s H–1B regulations were payment of the prevailing wage
intended employment and thus, an recently extended to the new H–1B1 appropriate to the position at the time
appropriate geographic scope for program. The statutory wage obligation the determination is made; it remains
employer-provided wage data. Based on is described at 20 CFR 655.731(a)(1), in static, not dynamic, as the proposal
operational experience, we have part, as follows: would require.
determined that CMSAs can be too The actual wage is the wage rate paid by • The appropriate response to a
geographically broad to be used in this the employer to all other individuals with material change or increase in the duties
manner when more specific surveys are similar experience and qualifications for the of the H–1B worker is to obtain a new
available. specific employment in question. In prevailing wage determination and LCA
Although any location within a CMSA determining such wage level, the following and file a new I–129 petition, not the
is not automatically deemed to be factors may be considered: Experience, response proposed by the Department.
within normal commuting distance of qualifications, education, job responsibility • The actual wage requirement of the
the place of intended employment, as and function, specialized knowledge, and
wage attestation, not its prevailing wage
are locations within a PMSA, there are other legitimate business factors.
prong, addresses the employer’s
instances in which the use of a CMSA- * * * * * obligation to increase an H–1B worker’s
based survey would be appropriate; e.g., Where there are other employees with
pay where the worker gains experience.
substantially similar experience and
if an employer can demonstrate it was • The proposal would require
not possible to obtain a representative qualifications in the specific employment in
question, i.e., they have substantially the constant out-of-cycle review of H–1B
sample of similarly employed workers wage rates by employers, perpetually
same duties and responsibilities as the H–1B
within the MSA or PMSA based upon nonimmigrant, the actual wage shall be the ratcheting up H–1B salaries, with
standard survey practices. Furthermore, amount paid to these other employees. significant economic and paperwork
if an employer is unable to obtain a concerns not addressed by the proposal.
representative sample at the MSA or The regulation continues: ‘‘The • The proposal is ambiguous as to
PMSA level, the geographic base of the prevailing wage for the occupational whether a fixed time requirement for
survey should be expanded. A CMSA classification in the area of intended paying higher level wages would be
survey will be accepted if the employer employment must be determined as of imposed.
can demonstrate that all points on a the time of filing the application. The • Employers are hampered by the
particular survey are within normal employer shall base the prevailing wage predominant use of a two-level system
commuting distance of the employer. on the best information as of the time of in surveys, which often overstates the
Last, as noted in the response to filing the application.’’ 20 CFR salary differential between the levels for
question 16 from Attachment A to 655.731(a)(2). some occupations.

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• Multi-tiered wage levels should be the comments. The Department does, appropriate, the Department will order
set for each occupation to better reflect however, believe the ‘‘actual wage’’ an employer to pay back wages, and
‘‘real world’’ experience. A two-tier requirement in the current regulation direct further relief to remedy any
wage level is unrealistic where an entry and the requirement to file a new H–1B violation of the wage attestation.
level job by its nature requires petition when the workers’ duties 11. Submission of Supplemental
considerable independence (e.g., a change are adequate to ensure that H– Information
teacher) or the salary for the second 1B workers receive the wages
level is markedly higher, e.g., post- appropriate to their duties. In this One commenter stated that allowing
doctoral research fellow, medical regard, the Department notes the limited opportunities to resubmit
resident, college instructor, marketing regulation expressly provides: ‘‘Where PWDR’s would save time, as employers
manager. the employer’s pay system or scale currently submit repeated requests in
• The proposed regulation would provides for adjustments during the order to secure a different PWD.
serve to elevate wages for H–1B period of the LCA—e.g., cost of living Another commenter stated the proposed
nonimmigrant workers while doing increases or other periodic adjustments, regulations encourage employers to
nothing to elevate the wages of U.S. or the employee moves to a more resubmit cases to get better prevailing
workers (treating aliens differently from advanced level in the same wage rates, overburdening SWA staff,
U.S. workers). occupation—such adjustments shall be while in the past, the loss of priority
• The Department should preserve provided to similarly employed H–1B dates discouraged repeat submission of
this and other H–1B issues for future nonimmigrants (unless the prevailing cases. The commenter suggested
rulemaking. wage is higher than the actual wage).’’ employers be required to wait a certain
As noted, AILA and Microsoft 20 CFR § 655.731(a)(1). The Department amount of time before being allowed to
criticized the proposal as exceeding the also notes the prevailing wage, even if submit a new job description on behalf
Department’s statutory authority. As it remains the required wage during an of the same alien worker. Two
stated by AILA: ‘‘The statute clearly H–1B worker’s placement, will be commenters asked whether the
contemplates that the prevailing wage adjusted upon the expiration of the LCA supplemental filing allowed under the
determination is made based on the proposed rule (see § 656.40(h)) meant
applicable to his or her employment.
information available at the time of the employer could submit a second
Since an LCA has a maximum length of
filing the application, and NOT survey rather than a supplement to the
three years, upon renewal a new
thereafter.’’ AILA continued: ‘‘[u]nder initial survey.
prevailing wage will be established.
the statute, the higher of the actual wage We believe the concerns of SWA
or the prevailing wage as determined at We believe the current regulation will commenters are addressed by the
the time of filing is the wage that is paid protect H–1B and H–1B1 workers and proposed requirement that employers
to the H–1B worker during the period of U.S. workers. By ensuring H–1B and H– may only submit supplemental
authorized employment. The statute 1B1 workers receive the full wages due information to the SWA one time about
neither authorizes, nor contemplates, them under the attestation, the the skill level of the job opportunity, the
review of the applicability of the Department protects against the erosion survey it provided for the SWA’s
prevailing wage to the position after the of wage or other conditions of consideration, or some other legitimate
time of filing.’’ In a similar vein, employment available to U.S. workers. basis for further review by the SWA.
Microsoft objected to the proposal as The regulations provide flexibility to Another commenter suggested the
contrary to statute: ‘‘The statute employers in choosing from among the proposed rule at § 656.40(h) should
specifically calls for the prevailing wage accepted survey methodologies in include a provision for handling
determination to be based on establishing the prevailing wage for a changes in Standard Occupational
information that is available when the position to be filled under an LCA, thus Classification (SOC) code due to the
application is filed—not information eliminating or minimizing any concerns inclusion of supplemental information
that becomes available later during the about the difficulties of establishing by employers. The commenter also
life of the petition, if the H–1B multiple levels of pay. The Department suggested the section include provisions
nonimmigrant worker’s duties change. If expects most employers are and will for situations in which there are
the change in duties is sufficiently great, continue to be attentive to their disputes over issues other than skill
the employer should file a new H–1 obligation to adjust wages paid to the level or acceptability of surveys.
petition.’’ Microsoft also noted, H–1B or H–1B1 worker if and when In response to the question about the
however, that ‘‘DOL regulations already their duties and experience require an employer’s ability to submit
require the employer to pay the higher increase from their beginning required supplemental information to a SWA, we
of the prevailing wage and actual wage. wage. If, upon investigation, questions note this provision was meant to
The employer is obligated to provide H– arise about the appropriateness of the address situations where the employer
1B nonimmigrant workers with any pay wage paid to an H–1B or H–1B1 worker, disagrees with the SWA about the skill
increases that its actual compensation the Department will consider all the level assigned to the job opportunity, or
system provides, and this obligation is circumstances bearing on the questions, where there is a need to address issues
ongoing throughout the life of the H–1B including the actual and written duties concerning the rejection of an employer-
petition and LCA. The actual wage of the worker (at the time the provided survey or the improper
obligation is sufficient to ensure that employment began and as they may application by the SWA of the
employees receive pay increases in skill have changed over time), appropriate skill level from such a
level.’’ documentation submitted by the survey. It was not intended to serve as
Based on its review of the comments, employer in connection with obtaining a means for an employer to submit a
the Department has decided not to a prevailing wage determination, the completely different survey. The
implement the proposal. The data provided to the employer through submission of a wholly different
Department does not share the view that the survey it utilized, and the effect alternative wage survey by an employer
the proposal would be inconsistent with upon an H–1B or H–1B1 worker’s will be considered a new request for a
the statute or necessarily pose all of the wages, if any, of adjustments in the prevailing wage determination and a
practical problems suggested by some of employer’s actual wage system. As new review process will be initiated.

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Last, it should be noted if the believe it may not be feasible to identify AILA suggested DOL amend the
employer submits its own published the different kinds of entities that might proposed rule to allow employers to
survey in response to a prevailing wage comprise educational institutions’ obtain prevailing wage data from
determination from the SWA that was related or affiliated nonprofit entities, or published, acceptable Government
derived from the OES survey, this nonprofit research organizations. If sources, such as OES. The employer’s
submission would not be considered to those entities can not be identified, it prevailing wage and wage source could
be the single opportunity the employer may not be possible for DOL to properly then be reviewed at the CO level. The
has under § 656.40(h) to submit define the universe that should be commenters stated this procedure
supplemental information regarding a surveyed to determine the appropriate would improve the PWD process by
prevailing wage determination. Rather, prevailing wages. It should be noted that eliminating the expensive step of SWAs
the submission of an alternative survey despite these difficulties in identifying determining and assigning wage rates.
by the employer in this situation would the appropriate entities to be surveyed, Two commenters stated that by
be considered a new request for a employers are always free to submit requiring a SWA-endorsed PWDR, DOL
prevailing wage determination and alternative sources of wage data that is missing an opportunity to reduce the
should be reviewed by the SWA under survey individuals employed by the resource burden on SWAs. The
§ 656.40(g), as if the employer had affected entities. commenters emphasized that DOL is
submitted the alternative survey with its In order to comply with these shifting to an attestation-based labor
initial request. If the SWA then rejects requirements in the absence of a certification system, and suggested the
the employer-provided survey as solution to this issue, the OES data we prevailing wage requirements also shift
inadequate or unacceptable for any currently make available is broken out to such a system. The commenters noted
reason, the employer may then submit into two data sets. In the absence of a employers are not required to secure a
supplemental information on the survey better alternative, we will continue to PWD from a SWA in connection with
under § 656.40(h). If, after a review of use the prevailing wage data OES H’1B nonimmigrant applications, and
the employer’s supplemental currently collects in surveying believed they should not be required to
information, the SWA determines the institutions of higher education to do so in the context of permanent labor
survey is still unacceptable, the determine a prevailing wage for one certification either.
employer would then have the universe consisting of institutions of For the reasons provided above in our
opportunity to request a review of the higher education, affiliated or nonprofit discussion of employer-provided wage
SWA’s prevailing wage determination research institutions, and nonprofit data, we can not agree with the
by the CO under § 656.41. research organizations. suggestion that the SWA’s role in the
We continue to discuss with BLS the prevailing wage process be eliminated.
12. Prevailing Wages for Certain possibility of obtaining data for The results of our audit experience
Academic, Nonprofit, and Research ‘‘Governmental research organizations,’’ under the streamlined labor certification
Entities because pay scales for Governmental system and the program experience we
A number of commenters, largely research laboratories and other related will obtain in administering the
university representatives, addressed activities are established by the Federal prevailing wage function will be
prevailing wage issues pertinent to Government and do not necessarily considered in considering whether the
nonprofit institutions. Some correspond with the other three types of role of the SWA in determining
commenters were concerned DOL had entities set forth under ACWIA. For this prevailing wages should be modified or
failed to meet its statutory obligation to reason, we do not contemplate eliminated.
calculate prevailing wages for the including Governmental research
14. Occupational Wage Library
academic community. One commenter organizations in the same universe
urged DOL to meet that obligation by unless the technical problems in Several commenters discussed issues
accepting and using wage scales already determining the prevailing wages for relating to electronic processing of
in place, and suggested a number of such entities prove to be PWD. A few commenters believed
sources, including the National insurmountable. Although BLS has data DOL’s Online Wage Library (OWL)
Institutes of Health and similar from the Office of Personnel could be a useful tool in streamlining
Government agencies, the Journal Management on Federal wages, it must the PWD process. The commenters all
Academe, and the Council on Teaching be determined whether we can extract discussed modifying the proposed rule
Hospitals. from that data those wages paid in to take advantage of OWL. One of the
The American Competitiveness and organizations in which the primary commenters stated that, by using OWL,
Workforce Improvement Act of 1998 function is research. Until that analysis employers could bypass direct
(ACWIA), Pub. L.105–277, 112 Stat. occurs and it is determined if that processing of PWDR’s by SWAs, saving
2681–641, amended the INA (Section information can be used, the prevailing both time and resources. The
212(p)(1), 8 U.S.C. 1182(p)(1)) to require wage data obtained from surveys of commenter suggested employers could
the computation of the prevailing wage institutions of higher education will submit computer-generated PWDR
for employees of institutions of higher continue to be used for these types of forms created by OWL along with the
education, nonprofit entities related to organizations as well. labor certification application. The
or affiliated with such institutions, computer-generated forms could
nonprofit research organizations, and 13. Role of the SWA in the Prevailing include date stamping or other
Governmental research organizations Wage Process embedded codes to allow DOL to verify
only take into account the wages paid For various reasons, some the date the form was generated. The
by such institutions and organizations commenters recommended the commenter believed such automation of
in the area of intended employment. elimination of SWAs from the PWD PWDR forms would lead to improved
With respect to commenters’ process. AILA asserted that prevailing efficiency at the SWA level.
suggestions that DOL has yet to fully wage determinations vary widely from We strongly encourage interested
comply with the ACWIA mandate in SWA to SWA, and suggested regional parties to make use of the OWL as a
determining prevailing wages for the determinations would produce greater means of identifying prevailing wage
affected institutions, we continue to reliability and uniformity for employers. rates for positions for which an

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employer seeks to employ foreign wage processes under the two programs efforts of SWAs. Likewise, AILA stated
workers. However, for the reasons are as similar as is functionally possible, a single adjudicative body would
provided above in the sections on they have different legislative and improve resolution of prevailing wage
employer provided wage surveys and programmatic histories. For example, issues. The PWP would help resolve
the role of the SWA, we do not believe under the permanent program, the differences in alternative sources of
it would be appropriate to automate the employer is required to obtain a prevailing wage data, for instance, by
prevailing wage determination process prevailing wage determination from the determining the acceptability of
in its entirety at this time. SWA, whether through the use of a particular surveys and applying the OES
CBA, the OES survey, or the submission survey to wage determinations. While
15. Technical Correction
of alternative sources of data for SWA expressing support for the proposed
One commenter indicated there was a review. In contrast, under the H–1B PWP, many commenters also suggested
typographical error at § 656.40(b)(3). program, SWA approval of any modifications to the proposed rule.
The commenter also stated that in particular source of prevailing wage However, because the processing of
§ 656.40(g)(2) there is potential data is not required. As stated in the applications for permanent employment
confusion in referring to ‘‘other wage current regulations at § 655.731(a)(2) certification will occur in one of two
data.’’ As the term could be open to ‘‘the employer is not required to use any processing centers, we have concluded
interpretation, the commenter suggested specific methodology to determine the the establishment of a PWP is not
DOL delete the term ‘‘other wage data’’ prevailing wage and may utilize a SESA, necessary. Each center will be managed
throughout the section and substitute an independent authoritative source, or by a center director who will report to
‘‘surveys.’’ other legitimate sources of wage data.’’ the Chief, Division of Foreign Labor
We have corrected the error in While it is correct that under the current Certification. Case determinations will
§ 656.40(b)(3) in accordance with the regulation, the involvement of both
commenter’s suggestion. With respect to be made by COs assigned to the
SWAs and ETA regional offices in the processing centers. The COs will also
the concern with the phrase ‘‘other wage prevailing wage determination process
data’’ in § 656.40(g)(2), we do not make determinations with respect to
constitutes a two-tiered process, with appeals of the prevailing wage
believe it necessary to modify the this final rule the process will be
regulation. This language predates the determinations issued by the SWAs. It
streamlined whereby appeals of SWA will be considerably easier for the
NPRM and was taken directly from PWDs will be handled by COs located
section J of GAL 2–98. The provision in national office to review and provide
in ETA processing centers as discussed oversight of the determinations issued
the regulation is intended to highlight below.
the fact that an alternative source of by COs located in ETA processing
One commenter recommended DOL
wage data need not be a formally centers. This change in reporting is
institute controls to ensure employers
conducted and published wage survey, different than under the former system
use the correct prevailing wages in job
but could also be an ad hoc set of wage when the national office did not have
orders and advertisements during
data from a survey that has been line authority over case processing and
recruitment. The commenter also
conducted or funded by the employer, decisions made by COs with respect to
suggested on-site wage and hour audits
as long as each of the criteria from PWDs. Accordingly, uniformity in
be conducted to ensure employers are
section J were met. decision-making with respect to appeals
following through and paying
will be enhanced and § 656.41 provides
16. Miscellaneous Matters employees prevailing wages. While this
final rule does not require the employer in this final rule, appeals of PWDs
AILA asserted the proposed to include the wage offer in issued by SWAs will be decided by a
regulations at §§ 655.731 and 656.40 advertisements placed as part of the CO rather than by a PWP.
establish two different standards for required pre-filing recruitment, if the We can not accept the
determining prevailing wage rates for wage offer is included, it will be recommendations of several
essentially the same occupations. AILA reviewed in the event of audit to ensure commenters to impose specific time
stated the involvement of two different it meets or exceeds the prevailing wage frames on SWAs and the PWP (now the
agencies in the PWD process constitutes for the job opportunity for which COs in this final rule) in taking actions
an unnecessary two-tier wage system, certification is sought. With respect to under the prevailing wage
doubling processing times, the recommendation that the Wage and determination and review process.
opportunities for delay, and the Hour Division conduct on-site audits to Because it is not possible to anticipate
likelihood of errors and inconsistencies. ensure employer compliance, we have the number of challenges that will be
The Immigration Act of 1990 (IMMACT no statutory authority to require this directed to the COs for review, and
90), Public Law 101–649, 104 Stat. 4978, activity. because there is no set level of
first established the attestation process resources, we do not believe it would be
for H–1B ‘‘specialty occupation’’ V. Certifying Officer Review of appropriate to constrain the COs in such
nonimmigrants, and included a Prevailing Wage Determinations fashion at the infancy of the new
prevailing wage requirement under that The NPRM proposed establishing a process. We do, however, anticipate that
process. The Conference Report on Prevailing Wage Panel (PWP) that does SWAs and the COs will operate in as
IMMACT 90 did indeed suggest that not exist under the current regulations. expeditious a manner as is possible.
‘‘the prevailing wage to which an The national PWP would have Further, in response to comments that
employer must attest is expected to be adjudicated complaints arising from the 21 day period during which a
interpreted by the Department of Labor PWD made by SWAs. request for review must be initiated by
in a like manner as regulations currently Commenters generally supported the an employer is unreasonable and
guiding section 212(a)(14)’’ [now at creation of the PWP. For example, one unduly burdensome, we have amended
section 212(a)(5)(A)]. The regulations prevailing wage specialist considered the proposed § 656.41(a) to state an
referred to are the provisions at § 656.40 the PWP to be an excellent idea, stating employer requesting a review of a SWA
that govern the prevailing wage process the PWP would improve consistency of prevailing wage determination must
under the permanent labor certification wage determination review and make such a request within 30 days of
program. However, while the prevailing simultaneously would support the the date of the determination.

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We have also amended § 656.41(a) to employment-based immigration the 3-day advertisement under the
correct an inconsistency as to when the represents. FAIR, however, did not current regulations.
period during which the employer may allege that any fraud or abuse that may
3. Recruitment Reports
request review of a prevailing wage exist in the permanent labor
determination commences. The first certification program would be greater AILA maintained we did not address
sentence stated the employer must make under the new system than it is under in the NPRM the added expense of a
a request for such a review ‘‘within 21 the current system. Moreover, the recruitment report that would require
days of receiving a determination from information FAIR provided about the employers to track each and every
the SWA,’’ while the next sentence impact of fraud and abuse was not applicant for a position, so the process
stated the request for review must be supported by any factual data, was by which an applicant was deemed
sent to the SWA that issued the speculative in nature or couched in qualified or unqualified for the position
prevailing wage determination ‘‘within hypothetical terms. For example, FAIR can be reported on an applicant by
21 days of the date of the PWD.’’ To stated it ‘‘had received indications of a applicant basis. AILA indicated this
remove this inconsistency and to 40 percent fraud and misrepresentation would be particularly troublesome for
provide greater clarity as to the date rate of permanent labor certification larger employers.
upon which the request for review applications filed in at least one Requiring employers to track each and
period commences, the final rule has jurisdiction.’’ FAIR did not provide any every applicant for a position is not a
been modified to state in both places it factual information to support a 40 new requirement. This is what the
appears that the employer must make a percent fraud rate in any jurisdiction. current basic process requires at
request for review within 30 days from We do not believe FAIR’s unsupported § 656.21(j). The Department has
the date the prevailing wage allegations provide a sufficient basis to required this since 1981. Admittedly,
determination was first issued by the conclude this final rule is likely to have we have for the last few years permitted
SWA. Similarly, we have modified this an annual effect on the economy of $100 a simplified recruitment report, which
final rule to provide that a request for million or more. did not require employers to track every
review of the determination by BALCA applicant for a job opportunity, which
2. Cost of Advertisements was the subject of an RIR application.
must be made within 30 days of the date
of the decision of the CO. Several commenters maintained the The RIR procedure, however, only
Last, it should be noted the appeal $500.00 cost per advertisement over all applies to those occupations for which
stage of the process is not intended to types of publications and geographic there is little or no availability. This
serve as an avenue for the employer to locations specified in the Paperwork procedure is the exception rather than
submit new materials relating to a Reduction Act statement in the NPRM the rule.
prevailing wage determination. The was too low. For the purpose of However, in response to comments
employer’s submittal of an employer- assessing the economic impact of raised with respect to this issue, we
provided alternative survey subsequent advertising costs, however, it is not the have revised our recruitment report
to a prevailing wage determination absolute level of such costs that is requirements by removing the
based upon the OES survey, and the important, but the comparison of the requirement that each individual U.S.
single opportunity to submit costs under the current rule versus this worker who applied for the job
supplemental information to the SWA, final rule. Our analysis indicates that opportunity be identified on the report.
represent the employer’s only advertising costs will be lower under However, the employer retains the
opportunities beyond the initial filing to this final rule than under the current responsibility for proving that U.S.
include materials in the record that will regulations. As indicated in the workers are not available for the job
be before the CO in the event of an preamble on the contents of advertising, opportunity and any U.S. worker
employer request for review under employers have the option of writing a rejections were for lawful reasons.
§ 656.41. considerably less detailed advertisement It should be noted, however, that we
under this final rule than they do under did address the cost of preparing the
Executive Order 12866 the current system. required recruitment report in the
Several commenters suggested we had A review of advertising costs was Information Collection Request (ICR)
not adequately assessed the potentially conducted by contacting major that was submitted to the Office of
increased costs the NPRM could impose newspapers in various U.S. cities and Management and Budget in connection
on employers. Some maintained these inquiring about advertising rates for with publication of the NPRM on May
costs singularly or collectively would Sunday and midweek advertisements. 6, 2002. In the ICR we estimated on
have an economic impact of $100 The basis for assessing the costs of the average it would take 1 hour for an
million or more. These commenters advertisements was two 10-line employer to prepare a recruitment
asserted we had not adequately advertisements. Ten-line advertisements report for each application it files. This
addressed a number of issues in would be permissible under this final estimate included employers preparing
certifying that this rule was not an rule. Estimated costs for placing two 10- recruitment reports under the regular
economically significant regulatory line Sunday advertisements ranged from basic process and the RIR process.
action within the meaning of Executive $400 to $1,100, whereas a 3-day The NPRM at 67 FR 30483 indicated
Order 12866. These issues are discussed advertisement would cost between $330 how to request copies of the ICR and
below: and $1,100. It is highly unlikely the cost where to submit comments on the ICR.
of Sunday advertisement will be as high We did not receive any comments on
1. Impact of Fraud and Abuse as claimed by commenters. Further, we the average of one burden hour we
FAIR maintained we are required to conclude on the basis of our program allocated to the preparation of the
conduct a full cost/benefit analysis of experience the 3-day advertisements recruitment report.
the proposed regulatory changes to typically placed by employers under the
determine if the regulatory scheme can current regulations are considerably 4. Additional Recruitment Steps
be tailored to remove or significantly longer than 10 lines. Consequently, the AILA maintained DOL failed to
reduce the impermissible burden on two Sunday advertisements required address the cost of required additional
society that fraud and abuse in under this final rule will cost less than recruitment steps. According to AILA,

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‘‘(p)articipation in job fairs, use of believe the pre-filing recruitment efforts The policy of not including bonuses
placement agencies, and internet ads currently being conducted by employers in calculating the prevailing wage is a
can be extremely costly recruitment under the RIR process compare longstanding policy and was not a factor
tools, thus imposing significant favorably with the pre-filing recruitment in the decision to permit employers to
additional expenses upon employers required under this final rule. set forth a wage on the labor
who wish to participate in the labor Regardless of whether economic certification that was within 95 percent
certification process, particularly small conditions are characterized by tight or of the prevailing wage. It should also be
employers.’’ loose labor markets, COs require noted employers were always allowed
Under the procedures in this final employers to show a pattern of to base the offered wage on
rule, employers may select from a more recruitment which requires the commissions, bonuses or other
extensive list of additional recruitment employer, as a practical matter, to incentives as long as the employer
steps than were listed in the proposed conduct one or more of the alternative guaranteed a wage paid on a weekly,
rule. Two of the additional recruitment steps required under this final rule. biweekly, or monthly basis. (See 20 CFR
steps—employer’s website and campus Many employers, regardless of the state 656.20(c)(3) of the current regulation
placement offices—would require no of the labor market, place two print and page 34 of Technical Assistance
more than nominal expenditures on the advertisements to support their RIR Guide No. 656—Labor Certifications.)
part of the employer-applicant. While applications. In our judgment, the time The reason for allowing employers to
some of the other alternative and resources employers are expending offer a wage that was within 95 percent
recruitment steps can be expensive, they to conduct recruitment to support their of the prevailing wage was because we
are not always expensive. Employers RIR applications is about the same as could not always be confident of the
can, for example, recruit using a low the time and resources they would have statistical precision of the ad hoc
cost job fair instead of an expensive job to spend on such activities to obtain the telephone surveys of employers that
fair. Further, we believe the additional documentation necessary to support were often conducted by the SWAs to
recruitment steps represent real world their application under the new determine the prevailing wage. Since
alternatives. The overwhelming majority streamlined program. the statistical precision of these ad hoc
of employers seriously recruiting surveys varied greatly, we believed it
workers for U.S. jobs would routinely 6. Business Necessity, Alternative Job
Requirements, Combination necessary to allow some variance in the
use one or more of the listed additional rate offered by the employer. In
recruitment steps. Additionally, it Occupations, and Experience Gained
With the Employer reviewing this policy we have
should be noted the alternative determined the basic premise was in
recruitment steps only require AILA maintained we failed to assess
one respect flawed as the ad hoc surveys
employers to advertise for the the economic consequences of the
proposed elimination of the use of the conducted by SWAs were as likely to be
occupation involved in the application
business necessity standard, alternative inaccurate on the low side as on the
rather than the job opportunity involved
job requirements, combination high side.
in the application as is required for the
newspaper advertisement. Allowing occupations and experience gained with As indicated in the preamble, since
employers to recruit for the occupation the employer. However, as discussed the introduction of the OES program in
involved in the application should also above, DOL has decided to retain the 1998, we have determined it is no
work to minimize employers costs to business necessity test and allow the longer necessary to provide the 5
conduct special recruitment efforts appropriate use of these standards and percent variance. The wage component
solely to satisfy the alternative criteria by employers applying for of the OES survey is conducted by BLS
recruitment steps. In sum, we do not permanent alien employment and with the exception of the Decennial
believe the cost of additional certifications. Therefore, there is no Census is the most comprehensive
recruitment steps to the employer will economic impact from the continued survey conducted by an agency of the
be significant. use of business necessity, alternative job Federal Government. The OES program
requirements, combination occupations surveys approximately 400,000
5. RIR Recruitment Costs and experience gained with the establishments per year, taking 3 years
Some commenters expressed concerns employer that needs to be discussed in to fully collect the sample of 1.2 million
about differences in the cost to prepare this final rule. establishments. This sample covers over
and submit an RIR application as 70 percent of the employment in the
compared to the new system would be 7. Elimination of the Five (5) Percent U.S. See 67 FR at 30479. The
due to differences in advertising Variance From the Prevailing Wage comprehensive nature of the OES
requirements. RIR recruitment efforts AILA maintained that this final rule program and resulting degree of
and concomitant costs vary with must explore and discuss the economic statistical precision make it unnecessary
economic conditions. In light of the effect of the proposed elimination of the to provide a 5 percent variance which
current labor market and the provision in the current rule under was, as indicated above, based on a
substantially increased availability of which the wage offered in a labor flawed premise.
U.S. workers, COs scrutinize certification application is considered as Further, we have determined that, in
applications and the recruitment efforts meeting the prevailing wage standard if view of the greater accuracy of PWD
supporting them more closely than they it is within 5 percent of the average rate under the OES program, the Secretary
did during more favorable economic of wages. AILA stated the 5 percent would not be fulfilling her statutory
conditions characterized by lower variance ‘‘was significant, because it responsibility to certify that the
unemployment rates. In the current helped to compensate for the fact that employment of the beneficiary of a labor
economic environment, employers are DOL’s prevailing wage data is outdated, certification application will not
supporting their RIR applications with and artificial by comparison [sic] by adversely affect the wages and working
more extensive recruitment elements such as bonuses and conditions of U.S. workers similarly
documentation than they were when commissions (elements under the DOL employed if she continued to certify
labor markets were considerably tighter. rule, may not be included in the applications whereby employers were
Our program experience leads us to employer’s offered wage).’’ allowed to pay 95 percent of the

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prevailing wage as determined by the efforts to reduce backlogs, which have governments, in the aggregate, or by the
SWA. been a recurring problem under the private sector, of $100 million or more
current process. Any cost savings in any 1 year, and it will not
8. Attorney Fees
realized, however, will not be greater significantly or uniquely affect small
One commenter stated the proposed than $100 million. governments. Therefore, no actions are
rule will add up to 10 hours of While it is not economically deemed necessary under the provisions
additional attorney time and will cost significant, the Office of Management of the Unfunded Mandates Reform Act
from $800.00 to $2,500 per case. Legal and Budget (OMB) reviewed the of 1995.
fees are not appropriate to include in proposed rule because of the novel legal
any estimate of financial impact. and policy issues raised by this Small Business Regulatory Enforcement
Attorney representation is not necessary rulemaking. Fairness Act of 1996
to file an Application for Permanent This rule is not a major rule as
Employment Certification. Regulatory Flexibility Act defined by section 804 of the Small
We have notified the Chief Counsel Business Regulatory Enforcement Act of
9. Cost of In-House Compliance for Advocacy, Small Business 1996 (SBREFA). The standards for
One commenter stated the cost of Administration, and made the determining whether a rule is a major
$25.00 per hour for the 557,429 burden certification under the Regulatory rule as defined by section 804 of the
hours provided in item 12 of the Flexibility Act at 5 U.S.C. 605(b), that Small Business Regulatory Enforcement
supporting statement to the Information the rule will not have a significant Act are similar to those used to
Collection Request submitted to OMB impact on a substantial number of small determine whether a rule is an
significantly understates the true costs entities. The final rule will affect only ‘‘economically significant regulatory
of such employees by at least 100 those employers seeking immigrant action’’ within the meaning of Executive
percent. We believe the $25.00 an hour workers for permanent employment in Order 12866. Because we certified this
used in the ICR to compute the cost for the United States. Since any employer final rule is not an economically
burden associated with this rulemaking can file a permanent application for significant rule under Executive Order
is fair and reasonable. According to the permanent employment, the Department 12866, we certify that the final rule is
2001 National Occupational considers the appropriate universe to not a major rule under SBREFA. It will
Employment and Wage estimates determine the impact of the final rule on not result in an annual effect on the
published by BLS, the national average a substantial number of small entities in economy of $100 million or more; a
wage for employment recruitment and the United States is the universe of major increase in costs or prices; or
placement specialists amounted to small businesses in the United States. significant adverse effects on
$21.31. In the main, we believe The Department estimates in the competition, employment, investment,
employment recruitment and placement upcoming year 60,000 employers will productivity, innovation, or on the
specialists fairly represent the skills and file approximately 100,000 applications ability of United States-based
work experience required to comply for permanent employment certification. companies to compete with foreign-
with the paperwork requirements of this Some large employers file several based companies in domestic and
final rule. hundred applications in a year. export markets.
Based on the foregoing, we certify, as Therefore, the number of small entities
in the NPRM, that this final rule is not Executive Order 13132
that file applications is significantly less
an ‘‘economically significant regulatory than the 60,000 employers that will file We received one comment
action’’ within the meaning of Executive applications in the coming year. maintaining that a summary impact
Order 12866. The direct incremental According to the Small Business statement should be required prior to
costs employers will incur because of Administration’s publication The any passage of these rules. The
this rule, above business practices Regulatory Flexibility Act; An commenter maintained the impact of an
required by the current rule of Implementation Guide for Federal increased number of aliens entering the
employers that are applying for Agencies, there were 22,400,000 small various states will be substantial. The
permanent alien workers, will not businesses in the United States in 2001. commenter went on to state: ‘‘If, for
amount to $100 million or more or Thus the percentage of small businesses example, in California there are 10,000
adversely affect in a material way the that file applications for permanent aliens and their spouses and minor
economy, a sector of the economy, alien employment certification is 0.27 children entering the state each year as
productivity, competition, jobs, the percent (60,000 22,400,000 = 0.27%). a result of fraudulent and
environment, public health or safety, or The Department of Labor asserts a small misrepresented labor certifications, U.S.
state, local or tribal governments or business pool of 0.27% does not workers will have fewer job
communities. DOL believes any represent a substantial proportion of opportunities and community resources
potential increase in recruitment and small entities. will be additionally taxed for the
recordkeeping costs associated with the When the proposed rule was provision of various services at the
proposed rule will be more than offset published, the Department notified the expense of lawful state residents.’’ The
by the combination of eliminating the Chief Counsel for Advocacy, Small permanent alien labor certification
role of the SWAs in the recruitment Business Administration, and made the regulations do not affect the numbers of
process and, consequently, eliminating certification pursuant to the Regulatory immigrants entering the United States
the time employers currently spend in Flexibility Act at 5 U.S.C. 605(b), that each year under various visa categories,
working with SWAs to meet regulatory the rule would not have a significant including work-based visas. Those
requirements. Further, the expected impact on a substantial number of small numbers are fixed by statute. Further,
large reduction in the time to process entities. The Chief Counsel did not the Department sees no basis for the
applications will lead to a reduction in submit a comment. speculation the rule will result in an
the resources employers spend on increase in fraudulently obtained labor
processing applications and will Unfunded Mandates Reform Act of 1995 certifications. For those reasons, we
eliminate DOL’s need to periodically This rule will not result in the have determined the rule will not have
institute special, resource intensive expenditure by state, local and tribal a substantial and direct impact on the

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states, on the relationship between the for Schedule A or who are immigrating The paperwork requirements
Federal Government and the states, or to work as sheepherders), for a total discussed in the preamble to this final
on the distribution of power and burden of 125,000 hours (100,000 rule will not become effective until
responsibilities among the various applications for permanent employment OMB has reviewed and approved these
levels of government. certification × 1.25 hours = 125,000 requirements and assigned an OMB
Assessment of Federal Regulations and hours). approval number. A copy of the current
Policies on Families The Department estimates the total draft of ETA Form 9089 and instructions
annual burden for all information follow this final rule.
The proposed regulation does not
collections in the final rule amounts to Catalogue of Federal Domestic
affect family well-being.
255,980 hours. Employers filing Assistance Number
Paperwork Reduction Act applications for permanent employment
certifications come from a wide variety This program is listed in the Catalog
Summary: This final rule contains of Federal Domestic Assistance at
revised paperwork requirements that are of industries. Personnel costs for
employers and/or their employees who Number 17.203, ‘‘Certification for
necessary to the implementation of the Immigrant Workers.’’
revised labor certification program. The perform the reporting and
revised paperwork requirements are recordkeeping functions required by List of Subjects in 20 CFR Parts 655 and
discussed in detail in section V of the this regulation may range from several 656
preamble that addresses the comments hundred dollars to several thousand
dollars where the corporate executive Administrative practice and
received on the proposed rule and in the procedure, Agriculture, Aliens,
section that discusses the comments officer of a large company performs
some or all of these functions Crewmembers, Employment,
relevant to the Department’s Employment and Training,
certification under Executive Order themselves. Absent specific wage data
regarding such employers and Enforcement, Forest and forest products,
12866 that this final rule is not an Fraud, Guam, Health professions,
‘‘economically significant regulatory employees, respondent costs were
estimated in the proposed rule at an Immigration, Labor, Longshore and
action.’’ harbor work, Migrant Labor, Passports
Respondents and frequency of average of $25.00 an hour. Based on the
forgoing, the total annual respondent and visas, Penalties, Reporting and
response: Employers submit an Recordkeeping requirements, Students,
Application for Permanent Employment costs for all information collections are
estimated at $6,399,500. Unemployment, Wages, Working
Certification when they wish to employ Conditions.
an immigrant alien worker. ETA The Department estimates that 5,000
estimates, based on its operating employers will be required to conduct Appendix A to the Preamble—
experience that in the upcoming year supervised recruitment. The Department Education and Training Categories by
employers will file approximately estimates the cost of an advertisement O*Net–SOC Occupation
100,000 applications for alien over all types of publications and
employment certification (including an geographic locations will average Note: Appendix A will not be codified in
estimated 5,300 applications filed with $500.00 for a total annual burden of the Code of Federal Regulations.
the DHS on behalf of aliens who qualify approximately $2,500,000. BILLING CODE 4510–30–P

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Final Rule Subparts F and G issued under 8 U.S.C. ■ (g) Revising paragraph (d)(2)
1184 and 1288(c); and 29 U.S.C. 49 et seq. introductory text;
Accordingly, for the reasons stated in Subparts H and I issued under 8 U.S.C. ■ (h) Revising paragraph (d)(2)(i); and
the Preamble, Parts 655 and 656 of 1101(a)(15)(H)(i)(b) and (b1), 1182(n), 1182(t), ■ (i) Removing paragraph (d)(4).
Chapter V of Title 20 of the Code of and 1184; 29 U.S.C. 49 et seq.; sec 303(a)(8),
Federal Regulations are amended as Pub. L. 102–232, 105 Stat. 1733, 1748 (8 § 655.731 What is the first LCA
follows: U.S.C. 1182 note); and Title IV, Pub. L. 105– requirement regarding wages?
277, 112 Stat. 2681.
Subparts J and K issued under 29 U.S.C. 49 * * * * *
PART 655—TEMPORARY (a) * * *
et seq.; and sec 221(a), Pub. L 101–649, 104
EMPLOYMENT OF ALIENS IN THE Stat. 4978, 5027 (8 U.S.C. 1184 note). (1) * * *
UNITED STATES Subparts L and M issued under 8 U.S.C. (2) The prevailing wage for the
1101(a)(15)(H)(1)(c), 1182(m), and 1184, 29 occupational classification in the area of
■ 1. The authority citation for part 655 U.S.C. 49 et seq. intended employment must be
continues to read as follows: determined as of the time of filing the
Subpart H—Labor Condition application. The employer shall base the
Authority: Section 655.0 issued under 8
U.S.C. 1101(a)(15)(H)(i) and (ii), 1182(m), (n),
Applications and Requirements for prevailing wage on the best information
and (t), 1184, 1188, and 1288(c) and (d); 29 Employers Using Nonimmigrants on available as of the time of filing the
U.S.C. 49 et seq.; sec. 3(c)(1), Pub. L. 101– H–1B Visas in Specialty Occupations application. Except as provided in this
238, 103 Stat. 2099, 2102 (8 U.S.C. 1182 and as Fashion Models, and Labor section, the employer is not required to
note); sec. 221(a), Pub. L. 101–649, 104 Stat. Attestation Requirements for use any specific methodology to
4978, 5027 (8 U.S.C. 1184 note); Title IV, Employers Using Nonimmigrants on determine the prevailing wage and may
Pub. L. 105–277,112 Stat. 2681; and 8 CFR H–1B1 Visas in Specialty Occupations
utilize a State Employment Security
Section 655.00 issued under 8 U.S.C. ■ 2. Section 655.731 is amended by: Agency (SESA) (now known as State
1101(a)(15)(H)(ii), 1184, and 1188; 29 U.S.C. ■ (a) Revising paragraph (a)(2); Workforce Agency or SWA), an
49 et seq.; and 8 CFR 214.2(h)(4)(i). ■ (b) Redesignating paragraphs independent authoritative source, or
Subparts A and C issued under 8 U.S.C. (b)(3)(iii)(B)(2) and (3) as (b)(3)(iii)(B)(3) other legitimate sources of wage data.
1101(a)(15)(H)(ii)(b) and 1184; 29 U.S.C. 49 et and (4), respectively; One of the following sources shall be
seq.; and 8 CFR 214.2(h)(4)(i). used to establish the prevailing wage:
■ (c) Adding new paragraph
Subpart B issued under 8 U.S.C. (i) A collective bargaining agreement
1101(a)(15)(H)(ii)(a), 1184, and 1188; and 29 (b)(3)(iii)(B)(2);
■ (d) Redesignating paragraphs which was negotiated at arms-length
U.S.C. 49 et seq.
Subparts D and E issued under 8 U.S.C. (b)(3)(iii)(C)(2) and (3) as paragraphs between a union and the employer
1101(a)(15)(H)(i)(a), 1182(m), and 1184; 29 (b)(3)(iii)(C)(3) and (4), respectively; which contains a wage rate applicable to
U.S.C. 49 et seq.; and sec. 3(c)(1), Pub. L. ■ (e) Adding new paragraph the occupation;
101–238, 103 Stat. 2099, 2103 (8 U.S.C. 1182 (b)(3)(iii)(C)(2); (ii) If the job opportunity is in an

note). ■ (f) Revising paragraph (d)(1); occupation which is not covered by

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Federal Register / Vol. 69, No. 247 / Monday, December 27, 2004 / Rules and Regulations 77385

paragraph (a)(2)(i) of this section, the wage) and thereafter may not contest the employment, ‘‘similarly employed’’
prevailing wage shall be the arithmetic legitimacy of the prevailing wage means:
mean of the wages of workers similarly determination by filing an appeal with (A) Having jobs requiring a
employed, except that the prevailing the CO (see § 656.41 of this chapter) or substantially similar level of skills
wage shall be the median when in an investigation or enforcement within the area of intended
provided by paragraphs (a)(2)(ii)(A), action. employment; or
(b)(3)(iii)(B)(2), and (b)(3)(iii)(C)(2) of (2) If the employer is unable to wait (B) If there are no substantially
this section. The prevailing wage rate for the SESA to produce the requested comparable jobs in the area of intended
shall be based on the best information prevailing wage for the occupation in employment, having substantially
available. The Department believes the question, or for the CO and/or the Board comparable jobs with employers outside
following prevailing wage sources are, of Alien Labor Certification Appeals to of the area of intended employment.
in order of priority, the most accurate issue a decision, the employer may rely (iv) A prevailing wage determination
and reliable: on other legitimate sources of available for LCA purposes made pursuant to this
(A) SESA (now known as State wage information as set forth in section shall not permit an employer to
Workforce Agency or SWA) paragraphs (a)(2)(ii)(B) and (C) of this pay a wage lower than required under
determination. Upon receipt of a written section. If the employer later discovers, any other applicable Federal, state or
request for a prevailing wage upon receipt of the prevailing wage local law.
determination, the SESA will determine (v) Where a range of wages is paid by
determination from the SESA, that the
whether the occupation is covered by a the employer to individuals in an
information relied upon produced a
collective bargaining agreement which occupational classification or among
wage below the prevailing wage for the
was negotiated at arms length, and, if individuals with similar experience and
occupation in the area of intended
not, determine the arithmetic mean of qualifications for the specific
employment and the employer was
wages of workers similarly employed in employment in question, a range is
paying below the SESA-determined considered to meet the prevailing wage
the area of intended employment. The wage, no wage violation will be found
wage component of the Bureau of Labor requirement so long as the bottom of the
if the employer retroactively wage range is at least the prevailing
Statistics Occupational Employment compensates the H–1B nonimmigrant(s)
Statistics survey shall be used to wage rate.
for the difference between wage paid (vi) The employer shall enter the
determine the arithmetic mean, unless and the prevailing wage, within 30 days
the employer provides an acceptable prevailing wage on the LCA in the form
of the employer’s receipt of the in which the employer will pay the
survey. If an acceptable employer- prevailing wage determination.
provided wage survey provides a wage (e.g., an annual salary or an hourly
(3) In all situations where the rate), except that in all cases the
median and does not provide an
employer obtains the prevailing wage prevailing wage must be expressed as an
arithmetic mean, the median shall be
determination from the SESA, the hourly wage if the H–1B nonimmigrant
the prevailing wage applicable to the
Department will accept that prevailing will be employed part-time. Where an
employer’s job opportunity. In making a
wage determination as correct (as to the employer obtains a prevailing wage
prevailing wage determination, the
amount of the wage) and will not determination (from any of the sources
SESA will follow § 656.40 of this
question its validity where the employer identified in paragraphs (a)(2)(i) and (ii)
chapter and other administrative
has maintained a copy of the SESA of this section) that is expressed as an
guidelines or regulations issued by ETA.
prevailing wage determination. A hourly rate, the employer may convert
The SESA shall specify the validity
complaint alleging inaccuracy of a SESA this determination to a yearly salary by
period of the prevailing wage
determination which in no event shall prevailing wage determination, in such multiplying the hourly rate by 2080.
be for less than 90 days or more than 1 cases, will not be investigated. Conversely, where an employer obtains
year from the date of the determination. (B) An independent authoritative a prevailing wage (from any of these
(1) An employer who chooses to source. The employer may use an sources) that is expressed as a yearly
utilize a SESA prevailing wage independent authoritative wage source salary, the employer may convert this
determination shall file the labor in lieu of a SESA prevailing wage determination to an hourly rate by
condition application within the determination. The independent dividing the salary by 2080.
validity period of the prevailing wage as authoritative source survey must meet (vii) In computing the prevailing wage
specified in the state’s prevailing wage all the criteria set forth in paragraph for a job opportunity in an occupational
determination. Any employer desiring (b)(3)(iii)(B) of this section. classification in an area of intended
review of a SESA prevailing wage (C) Another legitimate source of wage employment in the case of an employee
determination, including judicial information. The employer may rely on of an institution of higher education or
review, shall follow the appeal other legitimate sources of wage data to an affiliated or related nonprofit entity,
procedures at § 656.41 of this chapter. obtain the prevailing wage. The other a nonprofit research organization, or a
Employers which challenge a SESA legitimate source survey must meet all Governmental research organization as
prevailing wage determination under the criteria set forth in paragraph these terms are defined in 20 CFR
§ 656.41 must obtain a ruling prior to (b)(3)(iii)(C) of this section. The 656.40(e), the prevailing wage level
filing an LCA. In any challenge, the employer will be required to shall only take into account employees
Department and the SESA shall not demonstrate the legitimacy of the wage at such institutions and organizations in
divulge any employer wage data which in the event of an investigation. the area of intended employment.
were collected under the promise of (iii) For purposes of this section, (viii) An employer may file more than
confidentiality. Once an employer ‘‘similarly employed’’ means ‘‘having one LCA for the same occupational
obtains a prevailing wage determination substantially comparable jobs in the classification in the same area of
from the SESA and files an LCA occupational classification in the area of employment and, in such
supported by that prevailing wage intended employment,’’ except that if a circumstances, the employer could have
determination, the employer is deemed representative sample of workers in the H–1B employees in the same
to have accepted the prevailing wage occupational category can not be occupational classification in the same
determination (as to the amount of the obtained in the area of intended area of employment, brought into the

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U.S. (or accorded H–1B status) based on misrepresentation by the employer 30 days of the receipt of the decision of
petitions approved pursuant to different regarding the payment of the required the CO. If a request for review is timely
LCAs (filed at different times) with wage, or pursuant to such other basis for filed with the BALCA, the
different prevailing wage investigation as the Administrator may determination by the CO is suspended
determinations. Employers are advised find, the Administrator shall determine until the BALCA issues a determination
that the prevailing wage rate as to any whether the employer has the on the employer’s appeal. In any
particular H–1B nonimmigrant is documentation required in paragraph challenge to the wage determination,
prescribed by the LCA which supports (b)(3)of this section, and whether the neither ETA nor the SESA shall divulge
that nonimmigrant’s H–1B petition. The documentation supports the employer’s any employer wage data which was
employer is required to obtain the wage attestation. Where the collected under the promise of
prevailing wage at the time that the LCA documentation is either nonexistent or confidentiality.
is filed (see paragraph (a)(2) of this is insufficient to determine the (i) Where an employer timely
section). The LCA is valid for the period prevailing wage (e.g., does not meet the challenge an ETA prevailing wage
certified by ETA, and the employer criteria specified in this section, in determination obtained by the
must satisfy all the LCA’s requirements which case the Administrator may find Administrator, the 30-day investigative
(including the required wage which a violation of paragraph (b)(1), (2), or period shall be suspended until the
encompasses both prevailing and actual (3), of this section); or where, based on employer obtains a final ruling. Upon
wage rates) for as long as any H–1B significant evidence regarding wages such a final ruling, the investigation and
nonimmigrants are employed pursuant paid for the occupation in the area of any subsequent enforcement proceeding
to that LCA (§ 655.750). Where new intended employment, the shall continue, with ETA’s prevailing
nonimmigrants are employed pursuant Administrator has reason to believe that wage determination serving as the
to a new LCA, that new LCA prescribes the prevailing wage finding obtained conclusive determination for all
the employer’s obligations as to those from an independent authoritative purposes.
new nonimmigrants. The prevailing source or another legitimate source * * * * *
wage determination on the later/ varies substantially from the wage
subsequent LCA does not ‘‘relate back’’ prevailing for the occupation in the area PART 656—LABOR CERTIFICATION
to operate as an ‘‘update’’ of the of intended employment; or where the PROCESS FOR PERMANENT
prevailing wage for the previously-filed employer has been unable to EMPLOYMENT OF ALIENS IN THE
LCA for the same occupational demonstrate that the prevailing wage UNITED STATES
classification in the same area of determined by another legitimate source
employment. However, employers are is in accordance with the regulatory ■ 3. Part 656 is revised to read as follows:
cautioned that the actual wage criteria, the Administrator may contact Subpart A—Purpose and Scope of Part 656
component to the required wage may, as ETA, which shall provide the Sec.
a practical matter, eliminate any wage- Administrator with a prevailing wage 656.1 Purpose and scope of part 656.
payment differentiation among H–1B determination, which the Administrator 656.2 Description of the Immigration and
employees based on different prevailing shall use as the basis for determining Nationality Act and of the Department of
wage rates stated in applicable LCAs. violations and for computing back Labor’s role thereunder.
Every H–1B nonimmigrant is to be paid wages, if such wages are found to be 656.3 Definitions, for purposes of this part,
in accordance with the employer’s owed. The 30-day investigatory period of terms used in this part.
actual wage system, and thus is to shall be suspended while ETA makes Subpart B—Occupational Labor
receive any pay increases which that the prevailing wage determination and, Certification Determinations
system provides. in the event that the employer timely 656.5 Schedule A.
* * * * * challenges the determination (see
§ 655.731(d)(2)), shall be suspended Subpart C—Labor Certification Process
(b) * * *
(3) * * * until the challenge process is completed 656.10 General instructions.
(iii) * * * and the Administrator’s investigation 656.15 Applications for labor certification
(B) * * * can be resumed. for Schedule A occupations.
656.16 Labor certification applications for
(2) Reflect the median wage of (2) In the event the Administrator sheepherders.
workers similarly employed in the area obtains a prevailing wage from ETA 656.17 Basic labor certification process.
of intended employment if the survey pursuant to paragraph (d)(1) of this 656.18 Optional special recruitment and
provides such a median and does not section, and the employer desires documentation procedures for college
provide a weighted average wage of review, including judicial review, the and university teachers.
workers similarly employed in the area employer shall challenge the ETA 656.19 Live-in household domestic service
of intended employment; prevailing wage only by filing a request workers.
656.20 Audit procedures.
* * * * * for review under § 656.41 of this chapter 656.21 Supervised recruitment.
(C) * * * within 30 days of the employer’s receipt 656.24 Labor certification determinations.
(2) Reflect the median wage of of the prevailing wage determination 656.26 Board of Alien Labor Certification
workers similarly employed in the area from the Administrator. If the request is Appeals review of denials of labor
of intended employment if the survey timely filed, the decision of ETA is certification.
provides such a median and does not suspended until the CO issues a 656.27 Consideration by and decisions of
provide a weighted average wage of determination on the employer’s appeal. the Board of Alien Labor Certification
workers similarly employed in the area If the employer desires review, Appeals.
of intended employment; including judicial review, of the 656.30 Validity and invalidation of labor
* * * * * decision of the CO, the employer shall 656.31 Labor certification applications
(d) (1) In the event that a complaint make a request for review of the involving fraud or willful
is filed pursuant to subpart I of this part, determination by the Board of Alien misrepresentation.
alleging a failure to meet the ‘‘prevailing Labor Certification Appeals (BALCA) 656.32 Revocation of approved labor
wage’’ condition or a material under § 656.41(e) of this chapter within certifications.

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Subpart D—Determination of Prevailing (c)(1) Role of the Department of Labor. applying for a job opportunity for which
Wage The permanent labor certification role of an employer has filed an Application for
656.40 Determination of prevailing wage for the Department of Labor under the Act Permanent Employment Certification
labor certification purposes. derives from section 212(a)(5)(A) (8 (ETA Form 9089).
656.41 Certifying Officer review of U.S.C. 1182(a)(5)(A)), which provides Application means an Application for
prevailing wage determinations. that any alien who seeks admission or Permanent Employment Certification
Authority: The Authority citation for part status as an immigrant for the purpose submitted by an employer (or its agent
656 is revised to read as follows: 8 U.S.C. of employment under paragraph (2) or or attorney) in applying for a labor
1182(a)(5)(A), 1189(p)(1); 29 U.S.C. 49 et seq.; (3) of section 203(b) of the Act may not certification under this part.
section 122, Pub. L. 101–649, 109 Stat. 4978; Area of intended employment means
and Title IV, Pub. L. 105–277, 112 Stat. 2681.
be admitted unless the Secretary of
Labor has first certified to the Secretary the area within normal commuting
Subpart A—Purpose and Scope of Part of State and to the Secretary of distance of the place (address) of
656 Homeland Security that: intended employment. There is no rigid
(i) There are not sufficient United measure of distance which constitutes a
§ 656.1 Purpose and scope of part 656. States workers who are able, willing, normal commuting distance or normal
(a) Under section 212(a)(5)(A) of the qualified, and available at the time of commuting area, because there may be
Immigration and Nationality Act (INA application for a visa and admission to widely varying factual circumstances
or Act) (8 U.S.C. 1182(a)(5)(A)), certain the United States and at the place where among different areas (e.g., normal
aliens may not obtain immigrant visas the alien is to perform such skilled or commuting distances might be 20, 30, or
for entrance into the United States in unskilled labor; and 50 miles). If the place of intended
order to engage in permanent (ii) The employment of such alien employment is within a Metropolitan
employment unless the Secretary of will not adversely affect the wages and Statistical Area (MSA) or a Primary
Labor has first certified to the Secretary working conditions of workers in the Metropolitan Statistical Area (PMSA),
of State and to the Secretary of United States similarly employed. any place within the MSA or PMSA is
Homeland Security that: (2) This certification is referred to in deemed to be within normal commuting
(1) There are not sufficient United this part 656 as a ‘‘labor certification.’’ distance of the place of intended
States workers who are able, willing, (3) We certify the employment of employment; however, not all locations
qualified and available at the time of aliens in several instances: For the within a Consolidated Metropolitan
application for a visa and admission permanent employment of aliens under Statistical Area (CMSA) will be deemed
into the United States and at the place this part; and for temporary automatically to be within normal
where the alien is to perform the work; employment of aliens for agricultural commuting distance. The borders of
and and nonagricultural employment in the MSA’s and PMSA’s are not controlling
(2) The employment of the alien will United States classified under 8 U.S.C. in the identification of the normal
not adversely affect the wages and 1101(a)(15)(H)(ii), under the DHS commuting area; a location outside of an
working conditions of United States regulation at 8 CFR 214.2(h)(5) and (6) MSA or PMSA (or a CMSA) may be
workers similarly employed. and sections 101(a)(15)(H)(ii), 214, and within normal commuting distance of a
(b) The regulations under this part set 218 of the Act. See 8 U.S.C. location that is inside (e.g., near the
forth the procedures through which 1101(a)(15)(H)(ii), 1184, and 1188. We border of) the MSA or PMSA (or
such immigrant labor certifications may also administer labor attestation and CMSA). The terminology CMSAs and
be applied for, and granted or denied. labor condition application programs for PMSAs are being replaced by the Office
(c) Correspondence and questions the admission and/or work of Management and Budget (OMB).
about the regulations in this part should authorization of the following However, ETA will continue to
be addressed to: Division of Foreign nonimmigrants: Specialty occupations recognize the use of these area concepts
Labor Certification, Employment and and fashion models (H–1B visas), as well as their replacements.
Training Administration, 200 specialty occupations from countries Attorney means any person who is a
Constitution Avenue, NW., Room C– with which the U.S. has entered member in good standing of the bar of
4312, Washington, DC 20210. agreements listed in the INA (H–1B1 the highest court of any state,
visas), registered nurses (H–1C visas), possession, territory, or commonwealth
§ 656.2 Description of the Immigration and of the United States, or the District of
Nationality Act and of the Department of and crewmembers performing longshore
work (D visas), classified under 8 U.S.C. Columbia, and who is not under
Labor’s role thereunder.
1101(a)(15)(H)(i)(b), suspension or disbarment from practice
(a) Description of the Act. The Act (8 before any court or before DHS or the
U.S.C. 1101 et seq.) regulates the 1101(a)(15)(H)(i)(b1),
1101(a)(15)(H)(i)(c), and 1101(a)(15)(D), United States Department of Justice’s
admission of aliens into the United Executive Office for Immigration
States. The Act designates the Secretary respectively. See also 8 U.S.C. 1184(c),
(m), and (n), and 1288. Review. Such a person is permitted to
of Homeland Security and the Secretary act as an agent, representative, or
of State as the principal administrators § 656.3 Definitions, for purposes of this attorney for an employer and/or alien
of its provisions. part, of terms used in this part. under this part.
(b) Burden of proof under the Act. Board of Alien Labor Certification
Act means the Immigration and
Section 291 of the Act (8 U.S.C. 1361) Appeals (BALCA or Board) means the
Nationality Act, as amended, 8 U.S.C.
provides, in pertinent part, that: permanent Board established by this
1101 et seq.
Whenever any person makes application Agent means a person who is not an part, chaired by the Chief
for a visa or any other documentation employee of an employer, and who has Administrative Law Judge, and
required for entry, or makes application for been designated in writing to act on consisting of Administrative Law Judges
admission, or otherwise attempts to enter the assigned to the Department of Labor and
United States, the burden of proof shall be
behalf of an alien or employer in
upon such person to establish that he is connection with an application for labor designated by the Chief Administrative
eligible to receive such visa or such certification. Law Judge to be members of the Board
document, or is not subject to exclusion Applicant means a U.S. worker (see of Alien Labor Certification Appeals.
under any provision of this Act * * *. definition of U.S. worker below) who is The Board of Alien Labor Certification

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Appeals is located in Washington, DC, involved in the Application for must be attainable in the U.S. labor
and reviews and decides appeals in Permanent Employment Certification. market and must be stated on the
Washington, DC. (2) Job opportunities consisting solely application form. If the employer is
Certifying Officer (CO) means a of job duties that will be performed willing to accept an equivalent foreign
Department of Labor official who makes totally outside the United States, its degree, it must be clearly stated on the
determinations about whether or not to territories, possessions, or Application for Permanent Employment
grant applications for labor commonwealths can not be the subject Certification form.
certifications. of an Application for Permanent Secretary means the Secretary of
Closely-held Corporation means a Employment Certification. Labor, the chief official of the U.S.
corporation that typically has relatively Employment and Training Department of Labor, or the Secretary’s
few shareholders and whose shares are Administration (ETA) means the agency designee.
not generally traded in the securities within the Department of Labor (DOL) Secretary of Homeland Security
market. that includes the Division of Foreign means the chief official of the U.S.
Division of Foreign Labor Certification Labor Certification. Department of Homeland Security or the
means the organizational component Immigration Officer means an official Secretary of Homeland Security’s
within the Employment and Training of the Department of Homeland designee.
Administration that provides national Security, United States Citizenship and Secretary of State means the chief
leadership and policy guidance and Immigration Services (USCIS) who official of the U.S. Department of State
develops regulations and procedures to handles applications for labor or the Secretary of State’s designee.
carry out the responsibilities of the certifications under this part. Specific vocational preparation (SVP)
Secretary of Labor under the Job opportunity means a job opening means the amount of lapsed time
Immigration and Nationality Act, as for employment at a place in the United required by a typical worker to learn the
amended, concerning alien workers States to which U.S. workers can be techniques, acquire the information, and
seeking admission to the United States referred. develop the facility needed for average
Nonprofessional occupation means performance in a specific job-worker
in order to work under section
any occupation for which the situation. Lapsed time is not the same
212(a)(5)(A) of the Immigration and
attainment of a bachelor’s or higher as work time. For example, 30 days is
Nationality Act, as amended.
degree is not a usual requirement for the approximately 1 month of lapsed time
Employer means:
occupation. and not six 5-day work weeks, and 3
(1) A person, association, firm, or a Non-profit or tax-exempt organization months refers to 3 calendar months and
corporation that currently has a location for the purposes of § 656.40 means an not 90 work days. The various levels of
within the United States to which U.S. organization that: specific vocational preparation are
workers may be referred for (1) Is defined as a tax exempt provided below.
employment and that proposes to organization under the Internal Revenue
employ a full-time employee at a place Code of 1986, section 501(c)(3), (c)(4), or Level Time
within the United States, or the (c)(6) (26 U.S.C. 501(c)(3), (c)(4) or
authorized representative of such a (c)(6)); and 1 ........ Short demonstration.
person, association, firm, or corporation. (2) Has been approved as a tax-exempt 2 ........ Anything beyond short demonstra-
An employer must possess a valid organization for research or educational tion up to and including 30 days.
Federal Employer Identification Number 3 ........ Over 30 days up to and including 3
purposes by the Internal Revenue months.
(FEIN). For purposes of this definition, Service. 4 ........ Over 3 months up to and including 6
an ‘‘authorized representative’’ means O*NET means the system developed months.
an employee of the employer whose by the Department of Labor, 5 ........ Over 6 months up to and including 1
position or legal status authorizes the Employment and Training year.
employee to act for the employer in Administration, to provide to the 6 ........ Over 1 year up to and including 2
labor certification matters. A labor general public information on skills, years.
certification can not be granted for an abilities, knowledge, work activities, 7 ........ Over 2 years up to and including 4
Application for Permanent Employment interests and specific vocational years.
Certification filed on behalf of an 8 ........ Over 4 years up to and including 10
preparation levels associated with years.
independent contractor. occupations. O*NET is based on the 9 ........ Over 10 years.
(2) Persons who are temporarily in the Standard Occupational Classification
United States, including but not limited system. Further information about State Workforce Agency (SWA),
to, foreign diplomats, intra-company O*NET can be found at http:// formerly known as State Employment
transferees, students, and exchange Security Agency (SESA), means the state
visitors, visitors for business or Prevailing wage determination (PWD) agency that receives funds under the
pleasure, and representatives of foreign means the prevailing wage provided by Wagner-Peyser Act to provide prevailing
information media can not be employers the State Workforce Agency. wage determinations to employers, and/
for the purpose of obtaining a labor Professional occupation means an or administers the public labor
certification for permanent employment. occupation for which the attainment of exchange delivered through the state’s
Employment means: a bachelor’s or higher degree is a usual one-stop delivery system in accordance
(1) Permanent, full-time work by an education requirement. A beneficiary of with the Wagner-Peyser Act.
employee for an employer other than an application for permanent alien United States, when used in a
oneself. For purposes of this definition, employment certification involving a geographic sense, means the 50 states,
an investor is not an employee. In the professional occupation need not have a the District of Columbia, Puerto Rico,
event of an audit, the employer must be bachelor’s or higher degree to qualify for the U.S. Virgin Islands, and Guam.
prepared to document the permanent the professional occupation. However, if United States worker means any
and full-time nature of the position by the employer is willing to accept work worker who is:
furnishing position descriptions and experience in lieu of a baccalaureate or (1) A U.S. citizen;
payroll records for the job opportunity higher degree, such work experience (2) A U.S. national;

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Federal Register / Vol. 69, No. 247 / Monday, December 27, 2004 / Rules and Regulations 77389

(3) Lawfully admitted for permanent observation, care and counsel of persons section and must also choose to file
residence; requiring nursing care; administering of under either § 656.16 or § 656.17.
(4) Granted the status of an alien medicines and treatments prescribed by (b) Representation. (1) Employers may
lawfully admitted for temporary the physician or dentist; and have agents or attorneys represent them
residence under 8 U.S.C. 1160(a), participation in the activities for the throughout the labor certification
1161(a), or 1255a(a)(1); promotion of health and prevention of process. If an employer intends to be
(5) Admitted as a refugee under 8 illness in others. A program of study for represented by an agent or attorney, the
U.S.C. 1157; or professional nurses generally includes employer must sign the statement set
(6) Granted asylum under 8 U.S.C. theory and practice in clinical areas forth on the Application for Permanent
1158. such as obstetrics, surgery, pediatrics, Employment Certification form: That the
psychiatry, and medicine. attorney or agent is representing the
Subpart B—Occupational Labor (b) Group II: employer and the employer takes full
Certification Determinations (1) Sciences or arts (except performing responsibility for the accuracy of any
arts). Aliens (except for aliens in the representations made by the attorney or
§ 656.5 Schedule A.
performing arts) of exceptional ability in agent. Whenever, under this part, any
We have determined there are not notice or other document is required to
sufficient United States workers who are the sciences or arts including college
and university teachers of exceptional be sent to the employer, the document
able, willing, qualified, and available for will be sent to the attorney or agent who
the occupations listed below on ability who have been practicing their
science or art during the year prior to has been authorized to represent the
Schedule A and the wages and working employer on the Application for
conditions of United States workers application and who intend to practice
the same science or art in the United Permanent Employment Certification
similarly employed will not be form.
adversely affected by the employment of States. For purposes of this group, the
(2)(i) It is contrary to the best interests
aliens in Schedule A occupations. An term ‘‘science or art’’ means any field of
of U.S. workers to have the alien and/
employer seeking a labor certification knowledge and/or skill with respect to
or agents or attorneys for either the
for an occupation listed on Schedule A which colleges and universities
employer or the alien participate in
may apply for that labor certification commonly offer specialized courses interviewing or considering U.S.
under § 656.15. leading to a degree in the knowledge workers for the job offered the alien. As
and/or skill. An alien, however, need the beneficiary of a labor certification
Schedule A not have studied at a college or application, the alien can not represent
(a) Group I: university in order to qualify for the the best interests of U.S. workers in the
(1) Persons who will be employed as Group II occupation. job opportunity. The alien’s agent and/
physical therapists, and who possess all (2) Performing arts. Aliens of or attorney can not represent the alien
the qualifications necessary to take the exceptional ability in the performing effectively and at the same time truly be
physical therapist licensing examination arts whose work during the past 12 seeking U.S. workers for the job
in the state in which they propose to months did require, and whose opportunity. Therefore, the alien and/or
practice physical therapy. intended work in the United States will the alien’s agent and/or attorney may
(2) Aliens who will be employed as require, exceptional ability. not interview or consider U.S. workers
professional nurses; and for the job offered to the alien, unless
(i) Who have received a Certificate Subpart C—Labor Certification
the agent and/or attorney is the
from the Commission on Graduates of Process
employer’s representative, as described
Foreign Nursing Schools (CGFNS); § 656.10 General instructions. in paragraph (b)(2)(ii) of this section.
(ii) Who hold a permanent, full and (ii) The employer’s representative
unrestricted license to practice (a) Filing of applications. A request
who interviews or considers U.S.
professional nursing in the state of for a labor certification on behalf of any
workers for the job offered to the alien
intended employment; or alien who is required by the Act to be
must be the person who normally
(iii) Who have passed the National a beneficiary of a labor certification in
interviews or considers, on behalf of the
Council Licensure Examination for order to obtain permanent resident
employer, applicants for job
Registered Nurses (NCLEX–RN), status in the United States may be filed
opportunities such as that offered the
administered by the National Council of as follows:
alien, but which do not involve labor
State Boards of Nursing. (1) Except as provided in paragraphs certifications.
(3) Definitions of Group I occupations: (a)(2), (3), and (4) of this section, an (3) No person under suspension or
(i) Physical therapist means a person employer seeking a labor certification disbarment from practice before any
who applies the art and science of must file under this section and court or before the DHS or the United
physical therapy to the treatment of § 656.17. States Department of Justice’s Executive
patients with disabilities, disorders and (2) An employer seeking a labor Office for Immigration Review is
injuries to relieve pain, develop or certification for a college or university permitted to act as an agent,
restore function, and maintain teacher must apply for a labor representative, or attorney for an
performance, using physical means, certification under this section and must employer and/or alien under this part.
such as exercise, massage, heat, water, also file under either § 656.17 or (c) Attestations. The employer must
light, and electricity, as prescribed by a § 656.18. certify to the conditions of employment
physician (or a surgeon). (3) An employer seeking labor listed below on the Application for
(ii) Professional nurse means a person certification for an occupation listed on Permanent Employment Certification
who applies the art and science of Schedule A must apply for a labor under penalty of perjury under 18
nursing which reflects comprehension certification under this section and U.S.C. 1621 (2). Failure to attest to any
of principles derived from the physical, § 656.15. of the conditions listed below results in
biological and behavioral sciences. (4) An employer seeking labor a denial of the application.
Professional nursing generally includes certification for a sheepherder must (1) The offered wage equals or
making clinical judgments involving the apply for a labor certification under this exceeds the prevailing wage determined

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77390 Federal Register / Vol. 69, No. 247 / Monday, December 27, 2004 / Rules and Regulations

pursuant to § 656.40 and § 656.41, and location of the employment. The notice information required for advertisements
the wage the employer will pay to the must be posted for at least 10 by § 656.18(b)(2), and must include the
alien to begin work will equal or exceed consecutive business days. The notice information required by paragraph (d)(3)
the prevailing wage that is applicable at must be clearly visible and unobstructed of this section.
the time the alien begins work or from while posted and must be posted in (6) If an application is filed under the
the time the alien is admitted to take up conspicuous places where the Schedule A procedures at § 656.15, or
the certified employment; employer’s U.S. workers can readily the procedures for sheepherders at
(2) The wage offered is not based on read the posted notice on their way to § 656.16, the notice must contain a
commissions, bonuses or other or from their place of employment. description of the job and rate of pay,
incentives, unless the employer Appropriate locations for posting and must meet the requirements of this
guarantees a prevailing wage paid on a notices of the job opportunity include section.
weekly, bi-weekly, or monthly basis that locations in the immediate vicinity of (e)(1)(i) Submission of evidence. Any
equals or exceeds the prevailing wage; the wage and hour notices required by person may submit to the Certifying
(3) The employer has enough funds 29 CFR 516.4 or occupational safety and Officer documentary evidence bearing
available to pay the wage or salary health notices required by 29 CFR on an application for permanent alien
offered the alien; 1903.2(a). In addition, the employer labor certification filed under the basic
(4) The employer will be able to place must publish the notice in any and all labor certification process at § 656.17 or
the alien on the payroll on or before the in-house media, whether electronic or an application involving a college and
date of the alien’s proposed entrance printed, in accordance with the normal university teacher selected in a
into the United States; procedures used for the recruitment of competitive recruitment and selection
(5) The job opportunity does not similar positions in the employer’s process under § 656.18.
involve unlawful discrimination by organization. The documentation (ii) Documentary evidence submitted
race, creed, color, national origin, age, requirement may be satisfied by under paragraph (e)(1)(i) of this section
sex, religion, handicap, or citizenship; providing a copy of the posted notice may include information on available
(6) The employer’s job opportunity is and stating where it was posted, and by workers, information on wages and
not: providing copies of all the in-house working conditions, and information on
(i) Vacant because the former media, whether electronic or print, that the employer’s failure to meet the terms
occupant is on strike or locked out in were used to distribute notice of the and conditions for the employment of
the course of a labor dispute involving application in accordance with the alien workers and co-workers. The
a work stoppage; procedures used for similar positions Certifying Officer must consider this
(ii) At issue in a labor dispute within the employer’s organization. information in making his or her
involving a work stoppage. (2) In the case of a private household, determination.
(7) The job opportunity’s terms, notice is required under this paragraph (2)(i) Any person may submit to the
conditions and occupational (d) only if the household employs one appropriate DHS office documentary
environment are not contrary to Federal, or more U.S. workers at the time the evidence of fraud or willful
state or local law; application for labor certification is misrepresentation in a Schedule A
(8) The job opportunity has been and filed. The documentation requirement application filed under § 656.15 or a
is clearly open to any U.S. worker; may be satisfied by providing a copy of sheepherder application filed under
(9) The U.S. workers who applied for the posted notice to the Certifying § 656.16.
the job opportunity were rejected for Officer. (ii) Documentary evidence submitted
lawful job-related reasons; (3) The notice of the filing of an under paragraph (e)(2) of this section is
(10) The job opportunity is for full- Application for Permanent Employment limited to information relating to
time, permanent employment for an Certification must: possible fraud or willful
employer other than the alien. (i) State the notice is being provided misrepresentation. The DHS may
(d) Notice. (1) In applications filed as a result of the filing of an application consider this information under
under §§ 656.15 (Schedule A), 656.16 for permanent alien labor certification § 656.31.
(Sheepherders), 656.17 (Basic Process), for the relevant job opportunity; (f) Retention of Documents. Copies of
656.18 (College and University (ii) State any person may provide applications for permanent employment
Teachers), and 656.21 (Supervised documentary evidence bearing on the certification filed with the Department
Recruitment), the employer must give application to the Certifying Officer of of Labor and all supporting
notice of the filing of the Application for the Department of Labor; documentation must be retained by the
Permanent Employment Certification (iii) Provide the address of the employer for 5 years from the date of
and be able to document that notice was appropriate Certifying Officer; and filing the Application for Permanent
provided, if requested by the Certifying (iv) Be provided between 30 and 180 Employment Certification.
Officer, as follows: days before filing the application.
(i) To the bargaining representative(s) (4) If an application is filed under § 656.15 Applications for labor
(if any) of the employer’s employees in § 656.17, the notice must contain the certification for Schedule A occupations.
the occupational classification for information required for advertisements (a) Filing application. An employer
which certification of the job by § 656.17(f), must state the rate of pay must apply for a labor certification for
opportunity is sought in the employer’s (which must equal or exceed the a Schedule A occupation by filing an
location(s) in the area of intended prevailing wage entered by the SWA on application in duplicate with the
employment. Documentation may the prevailing wage request form), and appropriate DHS office, and not with an
consist of a copy of the letter and a copy must contain the information required ETA application processing center.
of the Application for Permanent by paragraph (d)(3) of this section. (b) General documentation
Employment Certification form that was (5) If an application is filed on behalf requirements. A Schedule A application
sent to the bargaining representative. of a college and university teacher must include:
(ii) If there is no such bargaining selected in a competitive selection and (1) An Application for Permanent
representative, by posted notice to the recruitment process, as provided by Employment Certification form, which
employer’s employees at the facility or § 656.18, the notice must include the includes a prevailing wage

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Federal Register / Vol. 69, No. 247 / Monday, December 27, 2004 / Rules and Regulations 77391

determination in accordance with about the alien from at least two of the (v) Documents attesting to the
§ 656.40 and § 656.41. following seven groups: outstanding reputation of theaters,
(2) Evidence that notice of filing the (i) Documentation of the alien’s concert halls, night clubs, and other
Application for Permanent Employment receipt of internationally recognized establishments in which the alien has
Certification was provided to the prizes or awards for excellence in the appeared or is scheduled to appear;
bargaining representative or the field for which certification is sought; and/or
employer’s employees as prescribed in (ii) Documentation of the alien’s (vi) Documents attesting to the
§ 656.10(d). membership in international outstanding reputation of theaters or
(c) Group I documentation. An associations, in the field for which repertory companies, ballet troupes,
employer seeking labor certification certification is sought, which require orchestras, or other organizations in
under Group I of Schedule A must file outstanding achievement of their which or with which the alien has
with DHS, as part of its labor members, as judged by recognized performed during the past year in a
certification application, documentary international experts in their disciplines leading or starring capacity.
evidence of the following: or fields; (e) Determination. An Immigration
(1) An employer seeking Schedule A (iii) Published material in Officer determines whether the
labor certification for an alien to be professional publications about the employer and alien have met the
employed as a physical therapist alien, about the alien’s work in the field applicable requirements of § 656.10 and
(§ 656.5(a)(1)) must file as part of its for which certification is sought, which of Schedule A (§ 656.5); reviews the
labor certification application a letter or shall include the title, date, and author application; and determines whether or
statement, signed by an authorized state not the alien is qualified for and intends
of such published material;
physical therapy licensing official in the to pursue the Schedule A occupation.
(iv) Evidence of the alien’s
state of intended employment, stating The Schedule A determination of DHS
participation on a panel, or
the alien is qualified to take that state’s is conclusive and final. The employer,
individually, as a judge of the work of
written licensing examination for therefore, may not appeal from any such
others in the same or in an allied field
physical therapists. Application for determination under the review
of specialization to that for which
certification of permanent employment procedures at § 656.26.
certification is sought;
as a physical therapist may be made (f) Department of Labor copy. If the
only under this § 656.15 and not under (v) Evidence of the alien’s original
scientific or scholarly research alien qualifies for the occupation, the
§ 656.17. Immigration Officer must indicate the
(2) An employer seeking a Schedule A contributions of major significance in
the field for which certification is occupation on the Application for
labor certification for an alien to be Permanent Employment Certification
employed as a professional nurse sought;
(vi) Evidence of the alien’s authorship form. The Immigration Officer then
(§ 656.5(a)(2)) must file as part of its must promptly forward a copy of the
labor certification application of published scientific or scholarly
articles in the field for which Application for Permanent Employment
documentation that the alien has Certification form, without attachments,
received a Certificate from the certification is sought, in international
professional journals or professional to the Chief, Division of Foreign Labor
Commission on Graduates of Foreign Certification, indicating thereon the
Nursing Schools (CGFNS); that the alien journals with an international
circulation; occupation, the Immigration Officer
holds a full and unrestricted who made the Schedule A
(permanent) license to practice nursing (vii) Evidence of the display of the
alien’s work, in the field for which determination, and the date of the
in the state of intended employment; or determination (see § 656.30 for the
that the alien has passed the National certification is sought, at artistic
exhibitions in more than one country. significance of this date).
Council Licensure Examination for (g) Refiling after denial. If an
Registered Nurses (NCLEX–RN). (2) An employer seeking labor
application for a Schedule A occupation
Application for certification of certification on behalf of an alien of
is denied, the employer, except where
employment as a professional nurse exceptional ability in the performing
the occupation is as a physical therapist
may be made only under this § 656.15(c) arts must file documentary evidence
or a professional nurse, may at any time
and not under § 656.17. that the alien’s work experience during
file for a labor certification on the alien
(d) Group II documentation. An the past twelve months did require, and
beneficiary’s behalf under § 656.17.
employer seeking a Schedule A labor the alien’s intended work in the United
Labor certifications for professional
certification under Group II of Schedule States will require, exceptional ability;
nurses and for physical therapists shall
A must file with DHS, as part of its labor and must submit documentation to
not be considered under § 656.17.
certification application, documentary show this exceptional ability, such as:
evidence of the following: (i) Documentation attesting to the § 656.16 Labor certification applications
(1) An employer seeking labor current widespread acclaim and for sheepherders.
certification on behalf of an alien to be international recognition accorded to (a) Filing requirements and required
employed as an alien of exceptional the alien, and receipt of internationally documentation. (1) An employer may
ability in the sciences or arts (excluding recognized prizes or awards for apply for a labor certification to employ
those in the performing arts) must file excellence; an alien (who has been employed
documentary evidence showing the (ii) Published material by or about the legally as a nonimmigrant sheepherder
widespread acclaim and international alien, such as critical reviews or articles in the United States for at least 33 of the
recognition accorded the alien by in major newspapers, periodicals, and/ preceding 36 months) as a sheepherder
recognized experts in the alien’s field; or trade journals (the title, date, and by filing an Application for Permanent
and documentation showing the alien’s author of such material shall be Employment Certification form directly
work in that field during the past year indicated); with DHS, not with an office of DOL.
did, and the alien’s intended work in (iii) Documentary evidence of (2) A signed letter or letters from each
the United States will, require earnings commensurate with the U.S. employer who has employed the
exceptional ability. In addition, the claimed level of ability; alien as a sheepherder during the
employer must file documentation (iv) Playbills and star billings; immediately preceding 36 months,

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attesting the alien has been employed in identifying information, including user (i) Submitting an application for an
the United States lawfully and identifiers, passwords, or personal identical job opportunity after
continuously as a sheepherder for at identification numbers (PINS). The complying with all of the filing and
least 33 of the immediately preceding 36 purpose of these personal identifiers is recruiting requirements of this part 656;
months, must be filed with the to allow the Department of Labor to and
application. associate a given electronic submission (ii) Withdrawing the original
(b) Determination. An Immigration with a single, specific individual. application in accordance with ETA
Officer reviews the application and the Personal identifiers can not be issued to procedures. Filing an application under
letters attesting to the alien’s previous a company or business. Rather, a this part stating the employer’s desire to
employment as a sheepherder in the personal identifier can only be issued to use the original filing date will be
United States, and determines whether specific individual. Any personal deemed to be a withdrawal of the
or not the alien and the employer(s) identifiers must be used solely by the original application. The original
have met the requirements of this individual to whom they are assigned application will be deemed withdrawn
section. and can not be used or transferred to regardless of whether the employer’s
(1) The determination of the any other individual. An individual request to use the original filing date is
Immigration Officer under this assigned a personal identifier must take approved.
paragraph (b) is conclusive and final. all reasonable steps to ensure that his or (2) Refilings under this paragraph
The employer(s) and the alien, her personal identifier can not be must be made within 210 days of the
therefore, may not make use of the compromised. If an individual assigned withdrawal of the prior application.
review procedures set forth at §§ 656.26 a personal identifier suspects, or (3) A copy of the original application,
and 656.27 to appeal such a becomes aware, that his or her personal including amendments, must be sent to
determination. identifier has been compromised or is the appropriate ETA application
(2) If the alien and the employer(s) being used by someone else, then the processing center when requested by the
have met the requirements of this individual must notify the Department CO under § 656.20.
section, the Immigration Officer must of Labor immediately of the incident (4) For purposes of paragraph (d)(1)(i)
indicate on the Application for and cease the electronic transmission of of this section, a job opportunity shall
Permanent Employment Certification any further submissions under that be considered identical if the employer,
form the occupation, the immigration personal identifier until such time as a alien, job title, job location, job
office that made the determination, and new personal identifier is provided. requirements, and job description are
the date of the determination (see Any electronic transmissions submitted the same as those stated in the original
§ 656.30 for the significance of this with a personal identifier will be application filed under the regulations
date). The Immigration Officer must presumed to be a submission by the in effect prior to March 28, 2005. For
then promptly forward a copy of the individual assigned that personal purposes of determining identical job
Application for Permanent Employment identifier. The Department of Labor’s opportunity, the original application
Certification form, without attachments, system will notify those making includes all accepted amendments up to
to the Chief, Division of Foreign Labor submissions of these requirements at the the time the application was withdrawn,
Certification. time of each submission. including amendments in response to
(c) Alternative filing. If an application (3) Documentation supporting the an assessment notice from a SWA
for a sheepherder does not meet the application for labor certification should pursuant to § 656.21(h) of the
requirements of this section, the not be filed with the application, regulations in effect prior to March 28,
application may be filed under § 656.17. however in the event the Certifying 2005.
Officer notifies the employer that its (e) Required pre-filing recruitment.
§ 656.17 Basic labor certification process. Except for labor certification
application is to be audited, the
(a) Filing applications. (1) Except as employer must furnish required applications involving college or
otherwise provided by §§ 656.15, supporting documentation prior to a university teachers selected pursuant to
656.16, and 656.18, an employer who final determination. a competitive recruitment and selection
desires to apply for a labor certification (b) Processing. (1) Applications are process (§ 656.18), Schedule A
on behalf of an alien must file a screened and are certified, are denied, occupations (§§ 656.5 and 656.15), and
completed Department of Labor or are selected for audit. sheepherders (§ 656.16), an employer
Application for Permanent Employment (2) Employers will be notified if their must attest to having conducted the
Certification form (ETA Form 9089). applications have been selected for following recruitment prior to filing the
The application must be filed with an audit by the issuance of an audit letter application:
ETA application processing center. under § 656.20. (1) Professional occupations. If the
Incomplete applications will be denied. (3) Applications may be selected for application is for a professional
Applications filed and certified audit in accordance with selection occupation, the employer must conduct
electronically must, upon receipt of the criteria or may be randomly selected. the recruitment steps within 6 months
labor certification, be signed (c) Filing date. Non-electronically of filing the application for alien
immediately by the employer in order to filed applications accepted for employment certification. The employer
be valid. Applications submitted by processing shall be date stamped. must maintain documentation of the
mail must contain the original signature Electronically filed applications will be recruitment and be prepared to submit
of the employer, alien, attorney, and/or considered filed when submitted. this documentation in the event of an
agent when they are received by the (d) Refiling Procedures. (1) Employers audit or in response to a request from
application processing center. DHS will that filed applications under the the Certifying Officer prior to rendering
not process petitions unless they are regulations in effect prior to March 28, a final determination.
supported by an original certified ETA 2005, may, if a job order has not been (i) Mandatory steps. Two of the steps,
Form 9089 that has been signed by the placed pursuant to those regulations, a job order and two print
employer, alien, attorney and/or agent. refile such applications under this part advertisements, are mandatory for all
(2) The Department of Labor may without loss of the original filing date applications involving professional
issue or require the use of certain by: occupations, except applications for

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college or university teachers selected in medium can be documented by employer’s text of the employer’s
a competitive selection and recruitment providing dated copies of pages from advertisement along with a written
process as provided in § 656.18. The the site that advertise the occupation confirmation from the radio or
mandatory recruitment steps must be involved in the application. television station stating when the
conducted at least 30 days, but no more (C) Job search Web site other than the advertisement was aired.
than 180 days, before the filing of the employer’s. The use of a job search Web (2) Nonprofessional occupations. If
application. site other than the employer’s can be the application is for a nonprofessional
(A) Job order. Placement of a job order documented by providing dated copies occupation, the employer must at a
with the SWA serving the area of of pages from one or more website(s) minimum, place a job order and two
intended employment for a period of 30 that advertise the occupation involved newspaper advertisements within 6
days. The start and end dates of the job in the application. Copies of web pages months of filing the application. The
order entered on the application shall generated in conjunction with the steps must be conducted at least 30 days
serve as documentation of this step. newspaper advertisements required by but no more that 180 days before the
(B) Advertisements in newspaper or paragraph (e)(1)(i)(B) of this section can filing of the application.
professional journals. (1) Placing an serve as documentation of the use of a (i) Job order. Placing a job order with
advertisement on two different Sundays Web site other than the employer’s. the SWA serving the area of intended
in the newspaper of general circulation (D) On-campus recruiting. The employment for a period of 30 days. The
in the area of intended employment employer’s on-campus recruiting can be start and end dates of the job order
most appropriate to the occupation and documented by providing copies of the entered on the application serve as
the workers likely to apply for the job notification issued or posted by the documentation of this step.
opportunity and most likely to bring college’s or university’s placement (ii) Newspaper advertisements. (A)
responses from able, willing, qualified, office naming the employer and the date Placing an advertisement on two
and available U.S. workers. it conducted interviews for employment different Sundays in the newspaper of
(2) If the job opportunity is located in in the occupation. general circulation in the area of
a rural area of intended employment (E) Trade or professional
intended employment most appropriate
that does not have a newspaper with a organizations. The use of professional or
to the occupation and the workers likely
Sunday edition, the employer may use trade organizations as a recruitment
to apply for the job opportunity.
the edition with the widest circulation source can be documented by providing
(B) If the job opportunity is located in
in the area of intended employment. copies of pages of newsletters or trade
(3) The advertisements must satisfy a rural area of intended employment
journals containing advertisements for
the requirements of paragraph (f) of this that does not have a newspaper that
the occupation involved in the
section. Documentation of this step can publishes a Sunday edition, the
application for alien employment
be satisfied by furnishing copies of the employer may use the newspaper
newspaper pages in which the (F) Private employment firms. The use edition with the widest circulation in
advertisements appeared or proof of of private employment firms or the area of intended employment.
publication furnished by the newspaper. placement agencies can be documented (C) Placement of the newspaper
(4) If the job involved in the by providing documentation sufficient advertisements can be documented in
application requires experience and an to demonstrate that recruitment has the same way as provided in paragraph
advanced degree, and a professional been conducted by a private firm for the (e)(1)(i)(B)(3) of this section for
journal normally would be used to occupation for which certification is professional occupations.
advertise the job opportunity, the sought. For example, documentation (D) The advertisements must satisfy
employer may, in lieu of one of the might consist of copies of contracts the requirements of paragraph (f) of this
Sunday advertisements, place an between the employer and the private section.
advertisement in the professional employment firm and copies of (f) Advertising requirements.
journal most likely to bring responses advertisements placed by the private Advertisements placed in newspapers of
from able, willing, qualified, and employment firm for the occupation general circulation or in professional
available U.S. workers. Documentation involved in the application. journals before filing the Application for
of this step can be satisfied by providing (G) Employee referral program with Permanent Employment Certification
a copy of the page in which the incentives. The use of an employee must:
advertisement appeared. referral program with incentives can be (1) Name the employer;
(ii) Additional recruitment steps. The documented by providing dated copies (2) Direct applicants to report or send
employer must select three additional of employer notices or memoranda resumes, as appropriate for the
recruitment steps from the alternatives advertising the program and specifying occupation, to the employer;
listed in paragraphs (e)(1)(ii)(A)–(J) of the incentives offered. (3) Provide a description of the
this section. Only one of the additional (H) Campus placement offices. The vacancy specific enough to apprise the
steps may consist solely of activity that use of a campus placement office can be U.S. workers of the job opportunity for
took place within 30 days of the filing documented by providing a copy of the which certification is sought;
of the application. None of the steps employer’s notice of the job opportunity (4) Indicate the geographic area of
may have taken place more than 180 provided to the campus placement employment with enough specificity to
days prior to filing the application. office. apprise applicants of any travel
(A) Job fairs. Recruitment at job fairs (I) Local and ethnic newspapers. The requirements and where applicants will
for the occupation involved in the use of local and ethnic newspapers can likely have to reside to perform the job
application, which can be documented be documented by providing a copy of opportunity;
by brochures advertising the fair and the page in the newspaper that contains (5) Not contain a wage rate lower than
newspaper advertisements in which the the employer’s advertisement. the prevailing wage rate;
employer is named as a participant in (J) Radio and television (6) Not contain any job requirements
the job fair. advertisements. The use of radio and or duties which exceed the job
(B) Employer’s Web site. The use of television advertisements can be requirements or duties listed on the
the employer’s Web site as a recruitment documented by providing a copy of the ETA Form 9089; and

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(7) Not contain wages or terms and contact and communication with position not substantially comparable to
conditions of employment that are less customers, employees or contractors the position for which certification is
favorable than those offered to the alien. who can not communicate in English being sought, or
(g) Recruitment report. (1) The and why it is reasonable to believe the (ii) The employer can demonstrate
employer must prepare a recruitment allegedly foreign-language-speaking that it is no longer feasible to train a
report signed by the employer or the customers, employees, and contractors worker to qualify for the position.
employer’s representative noted in can not communicate in English. (4) In evaluating whether the alien
§ 656.10(b)(2)(ii) describing the (3) If the job opportunity involves a beneficiary satisfies the employer’s
recruitment steps undertaken and the combination of occupations, the actual minimum requirements, DOL
results achieved, the number of hires, employer must document that it has will not consider any education or
and, if applicable, the number of U.S. normally employed persons for that training obtained by the alien
workers rejected, categorized by the combination of occupations, and/or beneficiary at the employer’s expense
lawful job related reasons for such workers customarily perform the unless the employer offers similar
rejections. The Certifying Officer, after combination of occupations in the area training to domestic worker applicants.
reviewing the employer’s recruitment of intended employment, and/or the (5) For purposes of this paragraph (i):
report, may request the U.S. workers’ combination job opportunity is based on (i) The term ‘‘employer’’ means an
resumes or applications, sorted by the a business necessity. Combination entity with the same Federal Employer
reasons the workers were rejected. occupations can be documented by Identification Number (FEIN), provided
(2) A U.S. worker is able and qualified position descriptions and relevant it meets the definition of an employer at
for the job opportunity if the worker can payroll records, and/or letters from § 656.3.
acquire the skills necessary to perform other employers stating their workers (ii) A ‘‘substantially comparable’’ job
the duties involved in the occupation normally perform the combination of or position means a job or position
during a reasonable period of on-the-job occupations in the area of intended requiring performance of the same job
training. Rejecting U.S. workers for employment, and/or documentation that duties more than 50 percent of the time.
lacking skills necessary to perform the the combination occupation arises from This requirement can be documented by
duties involved in the occupation, a business necessity. furnishing position descriptions, the
where the U.S. workers are capable of (4)(i) Alternative experience percentage of time spent on the various
acquiring the skills during a reasonable requirements must be substantially duties, organization charts, and payroll
period of on-the-job training is not a equivalent to the primary requirements records.
lawful job-related reason for rejection of of the job opportunity for which (j) Conditions of employment. (1)
the U.S. workers. certification is sought; and Working conditions must be normal to
(h) Job duties and requirements. (1) (ii) If the alien beneficiary already is the occupation in the area and industry.
The job opportunity’s requirements, employed by the employer, and the (2) Live-in requirements are
unless adequately documented as alien does not meet the primary job acceptable for household domestic
arising from business necessity, must be requirements and only potentially service workers only if the employer can
those normally required for the qualifies for the job by virtue of the demonstrate the requirement is essential
occupation and must not exceed the employer’s alternative requirements, to perform, in a reasonable manner, the
Specific Vocational Preparation level certification will be denied unless the job duties as described by the employer
assigned to the occupation as shown in application states that any suitable and there are not cost-effective
the O*NET Job Zones. To establish a combination of education, training, or alternatives to a live-in household
business necessity, an employer must experience is acceptable. requirement. Mere employer assertions
demonstrate the job duties and (i) Actual minimum requirements. do not constitute acceptable
requirements bear a reasonable DOL will evaluate the employer’s actual documentation. For example, a live-in
relationship to the occupation in the minimum requirements in accordance requirement could be supported by
context of the employer’s business and with this paragraph (i). documenting two working parents and
are essential to perform the job in a (1) The job requirements, as young children in the household, and/
reasonable manner. described, must represent the or the existence of erratic work
(2) A foreign language requirement employer’s actual minimum schedules requiring frequent travel and
can not be included, unless it is justified requirements for the job opportunity. a need to entertain business associates
by business necessity. Demonstrating (2) The employer must not have hired and clients on short notice. Depending
business necessity for a foreign language workers with less training or experience upon the situation, acceptable
requirement may be based upon the for jobs substantially comparable to that documentation could consist of travel
following: involved in the job opportunity. vouchers, written estimates of costs of
(i) The nature of the occupation, e.g., (3) If the alien beneficiary already is alternatives such as babysitters, or a
translator; or employed by the employer, in detailed listing of the frequency and
(ii) The need to communicate with a considering whether the job length of absences of the employer from
large majority of the employer’s requirements represent the employer’s the home.
customers, contractors, or employees actual minimums, DOL will review the (k) Layoffs. (1) If there has been a
who can not communicate effectively in training and experience possessed by layoff by the employer applicant in the
English, as documented by: the alien beneficiary at the time of area of intended employment within 6
(A) The employer furnishing the hiring by the employer, including as a months of filing an application
number and proportion of its clients, contract employee. The employer can involving the occupation for which
contractors, or employees who can not not require domestic worker applicants certification is sought or in a related
communicate in English, and/or a to possess training and/or experience occupation, the employer must
detailed plan to market products or beyond what the alien possessed at the document it has notified and considered
services in a foreign country; and time of hire unless: all potentially qualified laid off
(B) A detailed explanation of why the (i) The alien gained the experience (employer applicant) U.S. workers of the
duties of the position for which while working for the employer, job opportunity involved in the
certification is sought requires frequent including as a contract employee, in a application and the results of the

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notification and consideration. A layoff to document the alien was selected for (b) Required documentation.
shall be considered any involuntary the job opportunity in a competitive Employers filing applications on behalf
separation of one or more employees recruitment and selection process of live-in household domestic service
without cause or prejudice. through which the alien was found to be workers must provide, in event of an
(2) For the purposes of paragraph more qualified than any of the United audit, the following documentation:
(k)(1) of this section, a related States workers who applied for the job. (1) A statement describing the
occupation is any occupation that For purposes of this paragraph (b), household living accommodations,
requires workers to perform a majority documentation of the ‘‘competitive including the following:
of the essential duties involved in the recruitment and selection process’’ must (i) Whether the residence is a house
occupation for which certification is include: or apartment;
sought. (1) A statement, signed by an official (ii) The number of rooms in the
(l) Alien influence and control over who has actual hiring authority from the residence;
job opportunity. If the employer is a employer outlining in detail the (iii) The number of adults and
closely held corporation or partnership complete recruitment procedures children, and ages of the children,
in which the alien has an ownership undertaken; and which must set forth: residing in the household; and
interest, or if there is a familial (i) The total number of applicants for (iv) That free board and a private
relationship between the stockholders, the job opportunity; room not shared with any other person
corporate officers, incorporators, or (ii) The specific lawful job-related will be provided to the alien.
partners, and the alien, or if the alien is reasons why the alien is more qualified (2) Two copies of the employment
one of a small number of employees, the than each U.S. worker who applied for contract, each signed and dated prior to
employer in the event of an audit must the job; and the filing of the application by both the
be able to demonstrate the existence of (2) A final report of the faculty, employer and the alien (not by their
a bona fide job opportunity, i.e. the job student, and/or administrative body attorneys or agents). The contract must
is available to all U.S. workers, and making the recommendation or clearly state:
must provide to the Certifying Officer, selection of the alien, at the completion (i) The wages to be paid on an hourly
the following supporting of the competitive recruitment and and weekly basis;
documentation: selection process; (ii) Total hours of employment per
(1) A copy of the articles of (3) A copy of at least one week, and exact hours of daily
incorporation, partnership agreement, advertisement for the job opportunity employment;
business license or similar documents placed in a national professional (iii) That the alien is free to leave the
that establish the business entity; journal, giving the name and the date(s) employer’s premises during all non-
(2) A list of all corporate/company of publication; and which states the job work hours except the alien may work
officers and shareholders/partners of the title, duties, and requirements; overtime if paid for the overtime at no
corporation/firm/business, their titles (4) Evidence of all other recruitment less than the legally required hourly
and positions in the business’ structure, sources utilized; and rate;
and a description of the relationships to (5) A written statement attesting to the (iv) That the alien will reside on the
each other and to the alien beneficiary; degree of the alien’s educational or employer’s premises;
(3) The financial history of the professional qualifications and (v) Complete details of the duties to
corporation/company/partnership, academic achievements. be performed by the alien;
including the total investment in the (c) Time limit for filing. Applications (vi) The total amount of any money to
business entity and the amount of for permanent alien labor certification be advanced by the employer with
investment of each officer, incorporator/ for job opportunities as college and details of specific items, and the terms
partner and the alien beneficiary; and university teachers must be filed within of repayment by the alien of any such
(4) The name of the business’ official 18 months after a selection is made advance by the employer;
with primary responsibility for pursuant to a competitive recruitment (vii) That in no event may the alien
interviewing and hiring applicants for and selection process. be required to give more than two
positions within the organization and (d) Alternative procedure. An weeks’ notice of intent to leave the
the name(s) of the business’ official(s) employer that can not or does not employment contracted for and the
having control or influence over hiring choose to satisfy the special recruitment employer must give the alien at least
decisions involving the position for procedures for a college or university two weeks’ notice before terminating
which labor certification is sought. teacher under this section may avail employment;
(5) If the alien is one of 10 or fewer itself of the basic process at § 656.17. An (viii) That a duplicate contract has
employees, the employer must employer that files for certification of been furnished to the alien;
document any family relationship employment of college and university (ix) That a private room and board
between the employees and the alien. teachers under § 656.17 or this section will be provided at no cost to the
must be able to document, if requested worker; and
§ 656.18 Optional special recruitment and by the Certifying Officer, in accordance (x) Any other agreement or conditions
documentation procedures for college and with § 656.24(a)(2)(ii), the alien was not specified on the Application for
university teachers. Permanent Employment Certification
found to be more qualified than each
(a) Filing requirements. Applications U.S. worker who applied for the job form.
for certification of employment of opportunity. (3) Documentation of the alien’s paid
college and university teachers must be experience in the form of statements
filed by submitting a completed § 656.19 Live-in household domestic from past or present employers setting
Application for Permanent Employment service workers. forth the dates (month and year)
Certification form to the appropriate (a) Processing. Applications on behalf employment started and ended, hours of
ETA application processing center. of live-in household domestic service work per day, number of days worked
(b) Recruitment. The employer may occupations are processed pursuant to per week, place where the alien worked,
recruit for college and university the requirements of the basic process at detailed statement of duties performed
teachers under § 656.17 or must be able § 656.17. on the job, equipment and appliances

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77396 Federal Register / Vol. 69, No. 247 / Monday, December 27, 2004 / Rules and Regulations

used, and the amount of wages paid per (1) Request supplemental information recruit for U.S. workers in addition to
week or month. The total paid and/or documentation; or the advertising described in paragraph
experience must be equal to one full (2) Require the employer to conduct (b) of this section.
year’s employment on a full-time basis. supervised recruitment under § 656.21. (e) Recruitment report. The employer
For example, two year’s experience must provide to the Certifying Officer a
§ 656.21 Supervised recruitment. signed, detailed written report of the
working half-days is the equivalent of
one year’s full time experience. Time (a) Supervised recruitment. Where the employer’s supervised recruitment,
spent in a household domestic service Certifying Officer determines it signed by the employer or the
training course can not be included in appropriate, post-filing supervised employer’s representative described in
the required one year of paid recruitment may be required of the § 656.10(b)(2)(ii), within 30 days of the
experience. Each statement must employer for the pending application or Certifying Officer’s request for such a
contain the name and address of the future applications pursuant to report. The recruitment report must:
person who signed it and show the date § 656.20(b). (1) Identify each recruitment source
on which the statement was signed. A (b) Requirements. Supervised by name and document that each
statement not in English shall be recruitment shall consist of advertising recruitment source named was
accompanied by a written translation for the job opportunity by placing an contacted. This can include, for
into English certified by the translator as advertisement in a newspaper of general example, copies of letters to recruitment
to the accuracy of the translation, and as circulation or in a professional, trade, or sources such as unions, trade
to the translator’s competency to ethnic publication, and any other associations, colleges and universities
translate. measures required by the CO. If placed and any responses received to the
in a newspaper of general circulation, employer’s inquiries. Advertisements
§ 656.20 Audit procedures. the advertisement must be published for placed in newspapers, professional,
(a) Review of the labor certification 3 consecutive days, one of which must trade, or ethnic publications can be
application may lead to an audit of the be a Sunday; or, if placed in a documented by furnishing copies of the
application. Additionally, certain professional, trade, or ethnic tear sheets of the pages of the
applications may be selected randomly publication, the advertisement must be publication in which the advertisements
for audit and quality control purposes. published in the next available appeared, proof of publication furnished
If an application is selected for audit, published edition. The advertisement by the publication, or dated copies of
the Certifying Officer shall issue an must be approved by the Certifying the web pages if the advertisement
audit letter. The audit letter will: Officer before publication, and the CO appeared on the web as well as in the
(1) State the documentation that must will direct where the advertisement is to publication in which the advertisement
be submitted by the employer; be placed. appeared.
(2) Specify a date, 30 days from the (1) The employer must supply a draft (2) State the number of U.S. workers
date of the audit letter, by which the advertisement to the CO for review and who responded to the employer’s
required documentation must be approval within 30 days of being recruitment.
notified that supervised recruitment is (3) State the names, addresses, and
submitted; and
required. provide resumes (other than those sent
(3) Advise that if the required to the employer by the CO) of the U.S.
documentation has not been sent by the (2) The advertisement must:
(i) Direct applicants to send resumes workers who applied for the job
date specified the application will be opportunity, the number of workers
denied. or applications for the job opportunity
to the CO for referral to the employer; interviewed, and the job title of the
(i) Failure to provide documentation person who interviewed the workers.
(ii) Include an identification number
in a timely manner constitutes a refusal (4) Explain, with specificity, the
and an address designated by the
to exhaust available administrative lawful job-related reason(s) for not
Certifying Officer;
remedies; and (iii) Describe the job opportunity; hiring each U.S. worker who applied.
(ii) The administrative-judicial review (iv) Not contain a wage rate lower Rejection of one or more U.S. workers
procedure provided in § 656.26 is not than the prevailing wage rate; for lacking skills necessary to perform
available. (v) Summarize the employer’s the duties involved in the occupation,
(b) A substantial failure by the minimum job requirements, which can where the U.S. workers are capable of
employer to provide required not exceed any of the requirements acquiring the skills during a reasonable
documentation will result in that entered on the application form by the period of on-the-job training, is not a
application being denied § 656.24 under employer; lawful job-related reason for rejecting
and may result in a determination by (vi) Offer training if the job the U.S. workers. For the purpose of this
the Certifying Officer pursuant to opportunity is the type for which paragraph (e)(4), a U.S. worker is able
§ 656.24 to require the employer to employers normally provide training; and qualified for the job opportunity if
conduct supervised recruitment under and the worker can acquire the skills
§ 656.21 in future filings of labor (vii) Offer wages, terms and necessary to perform the duties
certification applications for up to 2 conditions of employment no less involved in the occupation during a
years. favorable than those offered to the alien. reasonable period of on-the-job training.
(c) The Certifying Officer may in his (c) Timing of advertisement. (1) The (f) The employer shall supply the CO
or her discretion provide one extension, advertisement shall be placed in with the required documentation or
of up to 30 days, to the 30 days accordance with the guidance provided information within 30 days of the date
specified in paragraph (a)(2) of this by the CO. of the request. If the employer does not
section. (2) The employer will notify the CO do so, the CO shall deny the
(d) Before making a final when the advertisement will be placed. application.
determination in accordance with the (d) Additional or substitute (g) The Certifying Officer in his or her
standards in § 656.24, whether in course recruitment. The Certifying Officer may discretion, for good cause shown, may
of an audit or otherwise, the Certifying designate other appropriate sources of provide one extension to any request for
Officer may: workers from which the employer must documentation or information.

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Federal Register / Vol. 69, No. 247 / Monday, December 27, 2004 / Rules and Regulations 77397

§ 656.24 Labor certification electronically or by mail) of the labor pursuant to § 656.32, a request for
determinations. certification determination. review of the denial or revocation may
(a)(1) The Chief, Division of Foreign (d) If a labor certification is granted, be made to the Board of Alien Labor
Labor Certification is the National except for a labor certification for an Certification Appeals by the employer
Certifying Officer. The Chief and the occupation on Schedule A (§ 656.5) or by making a request for such an
certifying officers in the ETA for employment as a sheepherder under administrative review in accordance
application processing centers have the § 656.16, the Certifying Officer must with the procedures provided in this
authority to certify or deny labor send the certified application and paragraph (a). The request for review:
certification applications. complete Final Determination form to (i) Must be sent to the Certifying
(2) If the labor certification presents a the employer, or, if appropriate, to the Officer who denied the application
special or unique problem, the Director employer’s agent or attorney, indicating within 30 days of the date of the
of an ETA application processing center the employer may file all the documents determination;
may refer the matter to the Chief, with the appropriate DHS office. (ii) Must clearly identify the
Division of Foreign Labor Certification. (e) If the labor certification is denied, particular labor certification
If the Chief, Division of Foreign Labor the Final Determination form will: determination for which review is
Certification, has directed that certain (1) State the reasons for the sought;
types of applications or specific determination; (iii) Must set forth the particular
(2) Quote the request for review grounds for the request; and
applications be handled in the ETA
procedures at § 656.26 (a) and (b); (iv) Must include the Final
national office, the Directors of the ETA (3) Advise that failure to request
application processing centers shall Determination.
review within 30 days of the date of the (2) The request for review, statements,
refer such applications to the Chief, determination, as specified in
Division of Foreign Labor Certification. briefs, and other submissions of the
§ 656.26(a), constitutes a failure to parties and amicus curiae must contain
(b) The Certifying Officer makes a exhaust administrative remedies;
determination either to grant or deny only legal argument and only such
(4) Advise that, if a request for review
the labor certification on the basis of evidence that was within the record
is not made within 30 days of the date
whether or not: upon which the denial of labor
of the determination, the denial shall
(1) The employer has met the certification was based.
become the final determination of the
requirements of this part. (b) Upon the receipt of a request for
(2) There is in the United States a review, the Certifying Officer
(5) Advise that if an application for a
worker who is able, willing, qualified, labor certification is denied, and a immediately must assemble an indexed
and available for and at the place of the request for review is not made in Appeal File:
job opportunity. (1) The Appeal File must be in
accordance with the procedures at
(i) The Certifying Officer must chronological order, must have the
§ 656.26(a) and (b), a new application
consider a U.S. worker able and may be filed at any time; and index on top followed by the most
qualified for the job opportunity if the (6) Advise that a new application in recent document, and must have
worker, by education, training, the same occupation for the same alien consecutively numbered pages. The
experience, or a combination thereof, is can not be filed while a request for Appeal File must contain the request for
able to perform in the normally review is pending with the Board of review, the complete application file,
accepted manner the duties involved in Alien Labor Certification Appeals. and copies of all the written material,
the occupation as customarily (f) If the Certifying Officer determines such as pertinent parts and pages of
performed by other U.S. workers the employer substantially failed to surveys and/or reports upon which the
similarly employed. For the purposes of produce required documentation, or the denial was based.
documentation was inadequate, or (2) The Certifying Officer must send
this paragraph (b)(2)(i), a U.S. worker is
determines a material misrepresentation the Appeal File to the Board of Alien
able and qualified for the job
was made with respect to the Labor Certification Appeals, Office of
opportunity if the worker can acquire
application, or if the Certifying Officer Administrative Law Judges, 800 K
the skills necessary to perform the
determines it is appropriate for other Street, NW., Suite 400–N, Washington,
duties involved in the occupation
reasons, the employer may be required DC 20001–8002.
during a reasonable period of on-the-job
to conduct supervised recruitment (3) The Certifying Officer must send a
pursuant to § 656.21 in future filings of copy of the Appeal File to the employer.
(ii) If the job involves a job
labor certification applications for up to The employer may furnish or suggest
opportunity as a college or university
two years from the date of the Final directly to the Board of Alien Labor
teacher, the U.S. worker must be at least
Determination. Certification Appeals the addition of
as qualified as the alien.
(g)(1) The employer may request any documentation that is not in the
(3) The employment of the alien will
reconsideration within 30 days from the Appeal File, but that was submitted to
not have an adverse effect upon the
date of issuance of the denial. DOL before the issuance of the Final
wages and working conditions of U.S.
(2) The request for reconsideration Determination. The employer must
workers similarly employed. In making
may not include evidence not submit such documentation in writing,
this determination, the Certifying
previously submitted. and must send a copy to the Associate
Officer considers such things as: labor
(3) The Certifying Officer may, in his Solicitor for Employment and Training
market information, the special
or her discretion, reconsider the Legal Services, Office of the Solicitor,
circumstances of the industry,
determination or treat it as a request for U.S. Department of Labor, Washington,
organization, and/or occupation, the
review under § 656.26(a). DC 20210.
prevailing wage in the area of intended
employment, and prevailing working § 656.26 Board of Alien Labor Certification § 656.27 Consideration by and decisions
conditions, such as hours, in the Appeals review of denials of labor of the Board of Alien Labor Certification
occupation. certification. Appeals.
(c) The Certifying Officer shall notify (a) Request for review. (1) If a labor (a) Panel designations. In considering
the employer in writing (either certification is denied, or revoked requests for review before it, the Board

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77398 Federal Register / Vol. 69, No. 247 / Monday, December 27, 2004 / Rules and Regulations

of Alien Labor Certification Appeals ‘‘administrative law judge’’ mean the (e) Duplicate labor certifications. (1)
may sit in panels of three members. The Board of Alien Labor Certification The Certifying Officer shall issue a
Chief Administrative Law Judge may Appeals member or the Board of Alien duplicate labor certification at the
designate any Board of Alien Labor Labor Certification Appeals panel duly written request of a Consular or
Certification Appeals member to submit designated under § 656.27(a); ‘‘Office of Immigration Officer. The Certifying
proposed findings and Administrative Law Judges’’ means the Officer shall issue such duplicate labor
recommendations to the Board of Alien Board of Alien Labor Certification certifications only to the Consular or
Labor Certification Appeals or to any Appeals; and ‘‘Chief Administrative Immigration Officer who initiated the
duly designated panel thereof to Law Judge’’ means the Chief request.
consider a particular case. Administrative Law Judge in that (2) The Certifying Officer shall issue
(b) Briefs and Statements of Position. official’s function of chairing the Board a duplicate labor certification to a
In considering the requests for review of Alien Labor Certification Appeals. Consular or Immigration Officer at the
before it, the Board of Alien Labor written request of an alien, employer, or
Certification Appeals must afford all § 656.30 Validity of and invalidation of an alien’s or employer’s attorney/agent.
parties 30 days to submit or decline to labor certifications. Such request for a duplicate labor
submit any appropriate Statement of (a) Validity of labor certifications. certification must be addressed to the
Position or legal brief. The Certifying Except as provided in paragraph (d) of Certifying Officer who issued the labor
Officer is to be represented solely by the this section, a labor certification is valid certification; must include documentary
Solicitor of Labor or the Solicitor’s indefinitely. evidence from a Consular or
designated representative. (b) Validation date. (1) A labor Immigration Officer that a visa
(c) Review on the record. The Board certification involving a job offer is application or visa petition, as
of Alien Labor Certification Appeals validated as of the date the ETA appropriate, has been filed; and must
must review a denial of labor application processing center date- include a Consular Office or DHS
certification under § 656.24, a stamped the application or the date an tracking number.
revocation of a certification under electronically filed application was
§ 656.32, or an affirmation of a § 656.31 Labor certification applications
submitted; and involving fraud or willful misrepresentation.
prevailing wage determination under (2) A labor certification for a Schedule
§ 656.41 on the basis of the record upon (a) Possible fraud or willful
A occupation is validated as of the date
which the decision was made, the misrepresentation. If possible fraud or
the application was dated by the
request for review, and any Statements willful misrepresentation involving a
Immigration Officer.
of Position or legal briefs submitted and labor certification is discovered before a
(c) Scope of validity. (1) A labor final labor certification determination;
must: certification for a Schedule A
(1) Affirm the denial of the labor the Certifying Officer will refer the
occupation is valid only for the matter to the DHS for investigation, and
certification, the revocation of occupation set forth on the Application
certification, or the affirmation of the must send a copy of the referral to the
for Permanent Employment Certification Department of Labor’s Office of
PWD; or form and throughout the United States
(2) Direct the Certifying Officer to Inspector General. If 90 days pass
unless the certification contains a without the filing of a criminal
grant the certification, overrule the geographic limitation.
revocation of certification, or overrule indictment or information, or receipt of
(2) A labor certification involving a a notification from DHS, DOL OIG, or
the affirmation of the PWD; or
(3) Direct that a hearing on the case specific job offer is valid only for the other appropriate authority that an
be held under paragraph (e) of this particular job opportunity and for the investigation is being conducted, the
section. area of intended employment stated on Certifying Officer may continue to
(d) Notifications of decisions. The the Application for Permanent process the application.
Board of Alien Labor Certification Employment Certification form. (b) Criminal indictment or
Appeals must notify the employer, the (d) Invalidation of labor certifications. information. If the DOL learns an
Certifying Officer, and the Solicitor of After issuance, a labor certification may application is the subject of a criminal
Labor of its decision, and must return be revoked by ETA using the procedures indictment or information filed in a
the record to the Certifying Officer described in § 656.32. Additionally, court, the processing of the application
unless the case has been set for hearing after issuance, a labor certification is must be halted until the judicial process
under paragraph (e) of this section. subject to invalidation by the DHS or by is completed. The Certifying Officer
(e) Hearings. (1) Notification of a Consul of the Department of State must notify the employer of this fact in
hearing. If the case has been set for a upon a determination, made in writing and must send a copy of the
hearing, the Board of Alien Labor accordance with those agencies’ notification to the alien, and to the
Certification Appeals must notify the procedures or by a court, of fraud or Department of Labor’s Office of
employer, the alien, the Certifying willful misrepresentation of a material Inspector General.
Officer, and the Solicitor of Labor of the fact involving the labor certification (c) Finding of no fraud or willful
date, time, and place of the hearing, and application. If evidence of such fraud or misrepresentation. If a court finds there
that the hearing may be rescheduled willful misrepresentation becomes was no fraud or willful
upon written request and for good cause known to the CO or to the Chief, misrepresentation, or if the Department
shown. Division of Foreign Labor Certification, of Justice decides not to prosecute, the
(2) Hearing procedure. (i) The ‘‘Rules the CO, or the Chief of the Division of Certifying Officer shall decide the case
of Practice and Procedure For Foreign Labor Certification, as on the merits of the application.
Administrative Hearings Before the appropriate, shall notify in writing the (d) Finding of fraud or willful
Office of Administrative Law Judges,’’ at DHS or Department of State, as misrepresentation. If as referenced in
29 CFR part 18, apply to hearings under appropriate. A copy of the notification § 656.30(d), a court, the DHS or the
this paragraph (e). must be sent to the regional or national Department of State determines there
(ii) For the purposes of this paragraph office, as appropriate, of the Department was fraud or willful misrepresentation
(e)(2), references in 29 CFR part 18 to: of Labor’s Office of Inspector General. involving a labor certification

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application, the application will be the employer chooses to appeal the area of intended employment, except
considered to be invalidated, processing SWA’s prevailing wage determination that, if a representative sample of
is terminated, a notice of the under § 656.41(a), it files the workers in the occupational category
termination and the reason therefore is Application for Permanent Employment can not be obtained in the area of
sent by the Certifying Officer to the Certification either electronically or by intended employment, similarly
employer, attorney/agent, as mail with an ETA application employed means:
appropriate, and a copy of the processing center and maintains the (1) Having jobs requiring a
notification is sent by the Certifying SWA PWD in its files. The substantially similar level of skills
Officer to the alien and to the determination shall be submitted to an within the area of intended
Department of Labor’s Office of ETA application processing center in employment; or
Inspector General. the event it is requested in the course of (2) If there are no substantially
an audit. comparable jobs in the area of intended
§ 656.32 Revocation of approved labor (b) Determinations. The SWA employment, having substantially
certifications. determines the prevailing wage as comparable jobs with employers outside
(a) Basis for DOL revocation. The follows: of the area of intended employment.
Certifying Officer in consultation with (1) Except as provided in paragraphs (e) Institutions of higher education
the Chief, Division of Foreign Labor (e) and (f) of this section, if the job and research entities. In computing the
Certification may take steps to revoke an opportunity is covered by a collective prevailing wage for a job opportunity in
approved labor certification, if he/she bargaining agreement (CBA) that was an occupational classification in an area
finds the certification was not justified. negotiated at arms-length between the of intended employment for an
A labor certification may also be union and the employer, the wage rate employee of an institution of higher
invalidated by DHS or the Department set forth in the CBA agreement is education, or an affiliated or related
of State as set forth in § 656.30(d). considered as not adversely affecting the nonprofit entity, a nonprofit research
(b) Department of Labor procedures wages of U.S. workers similarly organization, or a Governmental
for revocation. (1) The Certifying Officer employed, that is, it is considered the research organization, the prevailing
sends to the employer a Notice of Intent ‘‘prevailing wage’’ for labor certification wage level takes into account the wage
to Revoke an approved labor purposes. levels of employees only at such
certification which contains a detailed (2) If the job opportunity is not institutions and organizations in the
statement of the grounds for the covered by a CBA, the prevailing wage area of intended employment.
revocation and the time period allowed for labor certification purposes shall be (1) The organizations listed in this
for the employer’s rebuttal. The the arithmetic mean, except as provided paragraph (e) are defined as follows:
employer may submit evidence in in paragraph (b)(3) of this section, of the (i) Institution of higher education
rebuttal within 30 days of receipt of the wages of workers similarly employed in means an institution of higher education
notice. The Certifying Officer must the area of intended employment. The as defined in section 101(a) of the
consider all relevant evidence presented wage component of the DOL Higher Education Act of 1965. Section
in deciding whether to revoke the labor Occupational Employment Statistics 101(a) of that Act, 20 U.S.C.
certification. Survey shall be used to determine the 1001(a)(2000), provides an institution of
(2) If rebuttal evidence is not filed by arithmetic mean, unless the employer higher education is an educational
the employer, the Notice of Intent to provides an acceptable survey under institution in any state that:
Revoke becomes the final decision of the paragraph (g) of this section. (A) Admits as regular students only
Secretary. (3) If the employer provides a survey persons having a certificate of
(3) If the employer files rebuttal acceptable under paragraph (g) of this graduation from a school providing
evidence and the Certifying Officer section that provides a median and does secondary education, or the recognized
determines the certification should be not provide an arithmetic mean, the equivalent of such a certificate;
revoked, the employer may file an prevailing wage applicable to the (B) Is legally authorized within such
appeal under § 656.26. employer’s job opportunity shall be the state to provide a program of education
(4) The Certifying Officer will inform median of the wages of workers beyond secondary education;
the employer within 30 days of similarly employed in the area of (C) Provides an educational program
receiving any rebuttal evidence whether intended employment. for which the institution awards a
or not the labor certification will be (4) The employer may utilize a bachelor’s degree or provides not less
revoked. current wage determination in the area than a two-year program that is
(5) If the labor certification is revoked, under the Davis-Bacon Act, 40 U.S.C. acceptable for full credit toward such a
the Certifying Officer will also send a 276a et seq., 29 CFR part 1, or the degree;
copy of the notification to the DHS and McNamara-O’Hara Service Contract Act, (D) Is a public or other nonprofit
the Department of State. 41 U.S.C. 351 et seq. institution; and
(c) Validity period. The SWA must (E) Is accredited by a nationally
Subpart D—Determination of specify the validity period of the recognized accrediting agency or
Prevailing Wage prevailing wage, which in no event may association or, if not so accredited, is an
be less than 90 days or more than 1 year institution that has been granted
§ 656.40 Determination of prevailing wage from the determination date. To use a preaccreditation status by such an
for labor certification purposes. SWA PWD, employers must file their agency or association that has been
(a) Application process. The employer applications or begin the recruitment recognized by the Secretary of
must request a prevailing wage required by §§ 656.17(d) or 656.21 Education for the granting of
determination from the SWA having within the validity period specified by preaccreditation status, and the
jurisdiction over the proposed area of the SWA. Secretary of Education has determined
intended employment. The SWA must (d) Similarly employed. For purposes there is satisfactory assurance the
enter its wage determination on the of this section, similarly employed institution will meet the accreditation
form it uses and return the form with its means having substantially comparable standards of such an agency or
endorsement to the employer. Unless jobs in the occupational category in the association within a reasonable time.

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(ii) Affiliated or related nonprofit ‘‘professional athlete’’ as an individual (h) Submittal of supplemental
entity means a nonprofit entity who is employed as an athlete by— information by employer. (1) If the
(including but not limited to a hospital (1) A team that is a member of an employer disagrees with the skill level
and a medical or research institution) association of six or more professional assigned to its job opportunity, or if the
connected or associated with an sports teams whose total combined SWA informs the employer its survey is
institution of higher education, through revenues exceed $10,000,000 per year, if not acceptable, or if there are other
shared ownership or control by the the association governs the conduct of legitimate bases for such a review, the
same board or federation, operated by its members and regulates the contests employer may submit supplemental
an institution of higher education, or and exhibitions in which its member information to the SWA.
attached to an institution of higher teams regularly engage; or (2) The SWA must consider one
education as a member, branch, (2) Any minor league team that is supplemental submission about the
cooperative, or subsidiary. affiliated with such an association. employer’s survey or the skill level the
(iii) Nonprofit research organization (g) Employer-provided wage SWA assigned to the job opportunity or
or Governmental research organization information. (1) If the job opportunity is any other legitimate basis for the
means a research organization that is not covered by a CBA, or by a employer to request such a review. If the
either a nonprofit organization or entity professional sports league’s rules or SWA does not accept the employer’s
primarily engaged in basic research and/ regulations, the SWA must consider survey after considering the
or applied research, or a United States wage information provided by the supplemental information, or affirms its
Government entity whose primary employer in making a prevailing wage determination concerning the skill level,
mission is the performance or determination. An employer survey can it must inform the employer of the
promotion of basic research and/or be submitted either initially or after reasons for its decision.
applied research. Basic research is SWA issuance of a prevailing wage (3) The employer may then apply for
general research to gain more determination derived from the OES a new wage determination or appeal
comprehensive knowledge or survey. In the latter situation, the new under § 656.41.
understanding of the subject under employer survey submission will be (i) Wage can not be lower than
study, without specific applications in deemed a new prevailing wage required by any other law. No prevailing
mind. Basic research is also research determination request. wage determination for labor
(2) In each case where the employer certification purposes made under this
that advances scientific knowledge, but
submits a survey or other wage data for section permits an employer to pay a
does not have specific immediate
which it seeks acceptance, the employer wage lower than the highest wage
commercial objectives although it may
must provide the SWA with enough required by any applicable Federal,
be in fields of present or commercial
information about the survey state, or local law.
interest. It may include research and
methodology, including such items as (j) Fees prohibited. No SWA or SWA
investigation in the sciences, social
sample size and source, sample employee may charge a fee in
sciences, or humanities. Applied
selection procedures, and survey job connection with the filing of a request
research is research to gain knowledge
descriptions, to allow the SWA to make for a PWD, responding to such a request,
or understanding to determine the
a determination about the adequacy of or responding to a request for a review
means by which a specific, recognized
the data provided and validity of the of a SWA prevailing wage determination
need may be met. Applied research
statistical methodology used in under § 656.41.
includes investigations oriented to
conducting the survey in accordance
discovering new scientific knowledge § 656.41 Certifying Officer review of
with guidance issued by the ETA
that has specific commercial objectives prevailing wage determinations.
national office.
with respect to products, processes, or (3) The survey submitted to the SWA (a) Review of SWA prevailing wage
services. It may include research and must be based upon recently collected determinations. Any employer desiring
investigation in the sciences, social data: review of a SWA PWD must make a
sciences, or humanities. (i) A published survey must have request for such review within 30 days
(2) Nonprofit organization or entity, been published within 24 months of the of the date from when the PWD was
for the purpose of this paragraph (e), date of submission to the SWA, must be issued by the SWA. The request for
means an organization qualified as a tax the most current edition of the survey, review must be sent to the SWA that
exempt organization under the Internal and the data upon which the survey is issued the PWD within 30 days of the
Revenue Code of 1986, section 501(c)(3), based must have been collected within date of the PWD; clearly identify the
(c)(4), or (c)(6) (26 U.S.C. 501(c)(3), 24 months of the publication date of the PWD from which review is sought; set
(c)(4) or (c)(6)), and which has received survey. forth the particular grounds for the
approval as a tax exempt organization (ii) A survey conducted by the request; and include all the materials
from the Internal Revenue Service, as it employer must be based on data pertaining to the PWD submitted to the
relates to research or educational collected within 24 months of the date SWA up to the date of the PWD received
purposes. it is submitted to the SWA. from the SWA.
(f) Professional athletes. In computing (4) If the employer-provided survey is (b) Transmission of request to
the prevailing wage for a professional found not to be acceptable, the SWA processing center. (1) Upon the receipt
athlete (defined in Section must inform the employer in writing of of a request for review, the SWA must
212(a)(5)(A)(iii)(II) of the Act) when the the reasons the survey was not accepted. review the employer’s request and
job opportunity is covered by (5) The employer, after receiving accompanying documentation, and add
professional sports league rules or notification that the survey it provided any material that may have been
regulations, the wage set forth in those for the SWA’s consideration is not omitted by the employer, including any
rules or regulations is considered the acceptable, may file supplemental material sent to the employer by the
prevailing wage (see Section 212(p)(2) of information as provided in paragraph SWA up to the date of the PWD.
the Act). INA Section (h) of this section, file a new request for (2) The SWA must send a copy of the
212(a)(5)(A)(iii)(II), 8 U.S.C. a prevailing wage determination, or employer’s appeal, including any
1182(a)(5)(A)(iii)(II) (1999), defines appeal under § 656.41. material added under paragraph (b)(1) of

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this section, to the appropriate ETA (e) Request for review by BALCA. Any order, with the index on top followed by
application processing center. employer desiring review of a CO the most recent document.
(3) The SWA must send a copy of any prevailing wage determination must (3) The CO must send the Appeal File
material added by the SWA under make a request for review of the to the Office of Administrative Law
paragraph (b)(1) of this section to the determination by the Board of Alien Judges, Board of Alien Labor
employer. Labor Certification Appeals within 30 Certification Appeals, 800 K Street,
(c) Designations. The director(s) of the days of the date of the decision of the Suite 400–N, Washington, DC 20001–
ETA application processing center(s) CO. 8002.
will determine which CO will review (1) The request for review, statements, (4) The BALCA handles the appeals in
the employer’s appeal. briefs, and other submissions of the accordance with § 656.26 and § 656.27
parties and amicus curiae must contain of this part.
(d) Review on the record. The CO
only legal arguments and only such Signed in Washington, DC, this 13th day of
reviews the SWA PWD solely on the
evidence that was within the record December, 2004.
basis upon which the PWD was made
upon which the affirmation of the PWD Emily Stover DeRocco,
and, upon the request for review, may:
by the SWA was based. Assistant Secretary, Employment and
(1) Affirm the prevailing wage (2) The request for review must be in
determination issued by the SWA; Training Administration.
writing and addressed to the CO who
(2) Modify the prevailing wage made the determination. Upon receipt Editorial Note: The ETA Form 9089 and
determination; or of a request for a review, the CO must instructions will not appear in the Code of
(3) Remand the matter to the SWA for immediately assemble an indexed Federal Regulations.
further action. appeal file in reverse chronological BILLING CODE 4510–30–P

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[FR Doc. 04–27653 Filed 12–23–04; 8:45 am]


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