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§ 656.16 20 CFR Ch.

V (4–1–05 Edition)

(2) An employer seeking labor certifi- the Chief, Division of Foreign Labor
cation on behalf of an alien of excep- Certification, indicating thereon the
tional ability in the performing arts occupation, the Immigration Officer
must file documentary evidence that who made the Schedule A determina-
the alien’s work experience during the tion, and the date of the determination
past twelve months did require, and (see § 656.30 for the significance of this
the alien’s intended work in the United date).
States will require, exceptional ability; (g) Refiling after denial. If an applica-
and must submit documentation to tion for a Schedule A occupation is de-
show this exceptional ability, such as: nied, the employer, except where the
(i) Documentation attesting to the
occupation is as a physical therapist or
current widespread acclaim and inter-
a professional nurse, may at any time
national recognition accorded to the
alien, and receipt of internationally file for a labor certification on the
recognized prizes or awards for excel- alien beneficiary’s behalf under § 656.17.
lence; Labor certifications for professional
(ii) Published material by or about nurses and for physical therapists shall
the alien, such as critical reviews or not be considered under § 656.17.
articles in major newspapers, periodi-
cals, and/or trade journals (the title, § 656.16 Labor certification applica-
date, and author of such material shall tions for sheepherders.
be indicated); (a) Filing requirements and required
(iii) Documentary evidence of earn- documentation. (1) An employer may
ings commensurate with the claimed apply for a labor certification to em-
level of ability; ploy an alien (who has been employed
(iv) Playbills and star billings; legally as a nonimmigrant sheepherder
(v) Documents attesting to the out- in the United States for at least 33 of
standing reputation of theaters, con- the preceding 36 months) as a sheep-
cert halls, night clubs, and other estab- herder by filing an Application for Per-
lishments in which the alien has ap- manent Employment Certification form
peared or is scheduled to appear; and/or directly with DHS, not with an office
(vi) Documents attesting to the out- of DOL.
standing reputation of theaters or rep-
(2) A signed letter or letters from
ertory companies, ballet troupes, or-
chestras, or other organizations in each U.S. employer who has employed
which or with which the alien has per- the alien as a sheepherder during the
formed during the past year in a lead- immediately preceding 36 months, at-
ing or starring capacity. testing the alien has been employed in
(e) Determination. An Immigration Of- the United States lawfully and con-
ficer determines whether the employer tinuously as a sheepherder for at least
and alien have met the applicable re- 33 of the immediately preceding 36
quirements of § 656.10 and of Schedule A months, must be filed with the applica-
(§ 656.5); reviews the application; and tion.
determines whether or not the alien is (b) Determination. An Immigration Of-
qualified for and intends to pursue the ficer reviews the application and the
Schedule A occupation. The Schedule A letters attesting to the alien’s previous
determination of DHS is conclusive and employment as a sheepherder in the
final. The employer, therefore, may not United States, and determines whether
appeal from any such determination or not the alien and the employer(s)
under the review procedures at § 656.26. have met the requirements of this sec-
(f) Department of Labor copy. If the tion.
alien qualifies for the occupation, the (1) The determination of the Immi-
Immigration Officer must indicate the gration Officer under this paragraph (b)
occupation on the Application for Per-
is conclusive and final. The em-
manent Employment Certification form.
ployer(s) and the alien, therefore, may
The Immigration Officer then must
promptly forward a copy of the Applica- not make use of the review procedures
tion for Permanent Employment Certifi- set forth at §§ 656.26 and 656.27 to appeal
cation form, without attachments, to such a determination.


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Employment and Training Administration, Labor § 656.17

(2) If the alien and the employer(s) be used solely by the individual to
have met the requirements of this sec- whom they are assigned and can not be
tion, the Immigration Officer must in- used or transferred to any other indi-
dicate on the Application for Permanent vidual. An individual assigned a per-
Employment Certification form the occu- sonal identifier must take all reason-
pation, the immigration office that able steps to ensure that his or her per-
made the determination, and the date sonal identifier can not be com-
of the determination (see § 656.30 for promised. If an individual assigned a
the significance of this date). The Im- personal identifier suspects, or be-
migration Officer must then promptly comes aware, that his or her personal
forward a copy of the Application for identifier has been compromised or is
Permanent Employment Certification being used by someone else, then the
form, without attachments, to the individual must notify the Department
Chief, Division of Foreign Labor Cer- of Labor immediately of the incident
and cease the electronic transmission
(c) Alternative filing. If an application
of any further submissions under that
for a sheepherder does not meet the re-
personal identifier until such time as a
quirements of this section, the applica-
tion may be filed under § 656.17. new personal identifier is provided.
Any electronic transmissions sub-
§ 656.17 Basic labor certification proc- mitted with a personal identifier will
ess. be presumed to be a submission by the
(a) Filing applications. (1) Except as individual assigned that personal iden-
otherwise provided by §§ 656.15, 656.16, tifier. The Department of Labor’s sys-
and 656.18, an employer who desires to tem will notify those making submis-
apply for a labor certification on behalf sions of these requirements at the time
of an alien must file a completed De- of each submission.
partment of Labor Application for Per- (3) Documentation supporting the ap-
manent Employment Certification form plication for labor certification should
(ETA Form 9089). The application must not be filed with the application, how-
be filed with an ETA application proc- ever in the event the Certifying Officer
essing center. Incomplete applications notifies the employer that its applica-
will be denied. Applications filed and tion is to be audited, the employer
certified electronically must, upon re- must furnish required supporting docu-
ceipt of the labor certification, be mentation prior to a final determina-
signed immediately by the employer in tion.
order to be valid. Applications sub- (b) Processing. (1) Applications are
mitted by mail must contain the origi- screened and are certified, are denied,
nal signature of the employer, alien, or are selected for audit.
attorney, and/or agent when they are (2) Employers will be notified if their
received by the application processing applications have been selected for
center. DHS will not process petitions
audit by the issuance of an audit letter
unless they are supported by an origi-
under § 656.20.
nal certified ETA Form 9089 that has
been signed by the employer, alien, at- (3) Applications may be selected for
torney and/or agent. audit in accordance with selection cri-
(2) The Department of Labor may teria or may be randomly selected.
issue or require the use of certain iden- (c) Filing date. Non-electronically
tifying information, including user filed applications accepted for proc-
identifiers, passwords, or personal iden- essing shall be date stamped. Elec-
tification numbers (PINS). The purpose tronically filed applications will be
of these personal identifiers is to allow considered filed when submitted.
the Department of Labor to associate a (d) Refiling Procedures. (1) Employers
given electronic submission with a sin- that filed applications under the regu-
gle, specific individual. Personal iden- lations in effect prior to March 28, 2005,
tifiers can not be issued to a company may, if a job order has not been placed
or business. Rather, a personal identi- pursuant to those regulations, refile
fier can only be issued to specific indi- such applications under this part with-
vidual. Any personal identifiers must out loss of the original filing date by:


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